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ANALYSIS 


CIVIL  GOVERNMENT, 


INCLUDING 


A  TOPICAL  AND  TABULAR  ARRANGEMENT 


Constitution  of  the  United  States. 


DESIGNED    AS 

A  CLASS-BOOK   FOR  THE  USE  OF  GRAMMAR,  HIGH,  AND  NORMAL 

SCHOOLS,  ACADEMIES,   AND   OTHER  INSTITUTIONS 

OF   LEARNING. 


BY 

CALVIN    TOWNSEND, 

M 

COUNSSLOR-AT-LAW. 


NEW  YORK: 
PUBLISHED  BY  IVISON,  PHINNEY,  BLAKEMAN,  &  CO. 

PHILADELPHIA:  J.   B.  LIPPINCOTT  &  CO. 

CHICAGO:  S.  C.  GRIGGS  &  CO. 

1869. 


Entered,  according  to  Act  of  Congress,  in  the  year  1868,  bj  * 

CALVIN  TOWNSEND, 

In  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Northern 
District  of  New  York. 

G*»X^      o\l     ^OJy^\SLS  )p^JjioajJu   Ro:^uZ>U> 


G«o.  O.  Rand  &  Avery,  Electrotypers  and  Printers, 
3  Co  mhi  1 1,  Boston. 


PREFACE. 


The  analytic  method  of  this  work  fiimishes  its  chief 
claim  to  superiority  over  others  as  a  text-book  on  civil 
government.  Tlie  Constitution  of  the  United  States  is 
our  fundamental  law.  To  understand  this  well  is  to  under- 
stand the  whole  theory ;  and  to  analyze  this«  is  to  analyze 
the  entire  American  system. 

The  principal  aim,  therefore,  of  this  work  is  to  present 
analytically  the  subject  of  civil  government  as  adminis- 
tered in  this  country. 

The  living,  earnest  teacher  of  to-day  insists  on  a  critical 
analysis  of  whatever  subject  he  brings  into  the  class-room. 
This  has  been  the  tendency  of  his  profession  for  several 
years.  A  general  acquaintance  with  miscellaneous  and 
scattered  facts  bearing  on  his  subject  does  not  satisfy.  He 
must  get  inside  of  things,  and  take  his  pupil  with  him. 

No  work  has  been  published,  known  to  the  author,  pre- 
tending to  give  a  topical  and  tabular  arrangement  of  the 
principles  of  our  government.  Several  authors  have 
written  with  ability  on  civil  government,  having  direct 
reference  to  the  wants  of  the  schoolroom ;  but  they  have 
not  satisfied  the  instructor.  Whether  the  present  attempt 
shall  add  one  more  to  the  list  of  failures,  time  and  the 
teacher  will  tell. 

The  Constitution  of  the  United  States  consists  of  a  com- 
bination of  powers  granted  and  powers  prohibited.  Each 
of  these  classes  of  powers  is  divisible  into  general  topics 

• 

887341 


PREFACE. 


under  general  titled:  .'Each '.of  rtjiese  is  subdivisible  into 
more  specific  topics,  having  tooref  specific  titles ;  and  these 
last  into  othei*s;yincl.they  intajst'till;'  others,  until  the  point 
of  final  analysis  is  gained.     Example  :  — 

1.  How  composed. 

2.  Eligibility. 

3.  Tenure  of  office. 

4.  By  whom  chosen. 
1.  United-States    J     5.  When  chosen. 

Senate.  I     6.  How  classed. 

7.  Vacancies. 

8.  Vote. 

9.  Presiding  officer. 
..  10.  Senate  powers. 


1.  Legislative.  ■< 


2.  House  of  Rep- 
resentatives. 


1.  Proportion. 

2.  Apportionment. 

3.  Eligibility. 

4.  Term  of  office. 

5.  By  whom  chosen. 

6.  Electors. 

7.  Vacancies. 

8.  Census. 

9.  House  powers. 


2.  Executive. 


3.  Judicial. 


The  executive  and  judicial  branches  are  each  divisible 
and  •  subdivisible   into  topics,  the  same  as  the   legislative 


PREFACE.  O 

branch.  The  sub-titles  at  the  extreme  right,  or  several  of 
them,  may  be  divided,  also.  Take,  for  instance,  Eligibili- 
ty. Its  conditions  are,  1st,  Age  ;  2d,  Citizenship ;  8d,  In- 
habitancy; 4th,  Official  Disencumbrance.  Also  Senate 
Powers  ;  1st,  Legislative  ;  2d,  Executive ;  3d,  Elective ; 
4th,  Judicial. 

Thus  all  the  elements  of  kindred  significance  are  grouped 
together  in  one  table,  under  one  common  and  appropriate 
title.  For  this  purpose,  paragraphs,  sections,  and  clauses, 
whenever  necessary,  are  severed  from  their  original  con- 
nections in  the  Constitution.  Indeed,  very  little  attention 
is  paid  to  the  original  arrangement  of  the  subjects  of  that 
document.  The  preceding  example  will  give  the  teacher 
an  idea  of  the  manner  in  which  lessons  may  be  given  by 
topics. 

Exhaustively  grouping  the  sections  and  clauses  of  the 
Constitution  itself  must  necessarily  make  thorough  work 
at  every  step.  Every  element  of  the  main  subject,  even 
to  critical  minuteness,  will  be  clearly  comprehended  by  the 
pupil.  He  will  experience  the  scholarly  satisfaction  also, 
that  something  is  completed  every  lesson. 

In  the  tabular  arrangement  of  the  sections  and  clauses 
of  the  Constitution,  nothing  is  omitted  or  added;  and,  as 
far  as  possible,  the  precise  language  of  that  instrument  is 
retained. 

Famihar  and  critical  explanations  of  the  Analysis,  topic 
by  topic,  in  the  order  of  their  arrangement,  are  given 
according  to  the  views  of  the  most  eminent  writers  on  con- 
stitutional law.  Very  little  or  no  claim  is  laid  by  the 
author  to  originality  of  construction.  In  this,  he  acknowl- 
edges his  entire  indebtedness  to  the  illustrious  men  who 
formed  the  Constitution,  as  their  views  appear  in  the 
Madison  Papers  and  the  Federalist ;  and  to  the  profound 


6  PREFACE. 

jurists  whose  works  are  accepted  by  the  legal  profession 
as  of  the  highest  autliority. 

For  several  years,  there  has  been  a  growing  conviction 
among  educators,  that  civil  government  should  be  added 
to  the  list  of  studies  in  all  our  schools  of  the  higher  grades, 
and  in  the  advanced  classes  of  the  common  school. 

The  school-boy  of  to-day  becomes  the  voter  of  to-morrow. 
The  milhons  of  youth  now  in  the  schools  of  America  are 
soon  to  decide  all  the  grave  questions  of  national  interest 
which  concern  us  as  a  people.  The  ballot  more  than  the 
bullet  must  determine  the  destiny  of  our  country.  The 
ballot  in  the  hands  of  the  ignorant  may  do  more  mischief 
than  the  torch  of  the  incendiary  in  the  towers  of  the 
metropolis. 

If  the  publication  of  tliis  work  shall  contribute  to  a  more 
extended  acquaintance  by  the  masses  of  American  youth 
with  the  fundamental  principles  of  our  government,  the 
purpose  for  which  it  was  written  will  be  realized. 

THE  AUTHOR. 
Rochester,  N.Y.,  October,  1868. 


INTRODUCTION. 


BY   REV.  JAMES    E.  LATIMER,  D.D. 


In  these  days,  a  new  book  can  vindicate  its  claims  to 
public  notice  and  favor  only  on  the  ground  that  the  topics 
of  which  it  treats  are  absolutely  new,  or  that  it  discusses  a 
known  subject  in  such  a  manner  as  to  make  us  instantly 
feel  tliat  it  meets  an  acknowledged  want. 

Such  is  the  claim  we  make  for  the  book  before  us.  It 
treats  a  common  subject,  —  one  that  was  ably  presented  by 
the  distinguished  Judge  Story,  some  thirty  years  since,  in 
convenient  form  for  the  use  of  schools,  and,  since,  by  several 
authors  of  less  distinction,  though  of  acknowledged  abihty. 
But  the  peculiar  merit  of  our  author  consists  in  the  ana- 
lytical method  which  he  adopts.  His  aim  is  purely  didactic, 
and  to  teach  exactly  what  the  Constitution  contains. 

This  book  is  one  that  was  not  made^  but  grew.  Prof. 
Townsend,  the  author,  has  for  years  made  civil  government 
a  speciality  in  lessons  and  lectures  before  the  teachers' 
institutes  of  New  York.  What  was  small  and  unpretend- 
ing in  the  beginning  has  thus  grown  into  importance  on 
his  hands,  until  it  has  become  the  full,  well-rounded  treatise 
which  is  here  presented. 

He  has  been  urged  to  the  preparation  and  publication  of 
this  work  by  the  myriad  voices  of  educators  and  teachers 
who  have  listened  to  his  instructive  lessons  upon  a  subject 
which  is  usually  so  dry  and  repulsive. 


8  INTRODFCTION. 

He  lias  drawn  the  materials  for  bis  work  from  original 
sources,  and  from  commentaries  of  classic  excellence.  We 
see  traces  of  interminable  rmnmagings  of  the  Madison 
Papers,  the  Federalist,  Elliot's  Debates,  Story  and  Rawle 
on  the  Constitution,  Kent's  and  Blackstone's  Commentaries, 
as  well  as  the  most  patient  gleanings  from  official,  statistical, 
and  chronoloo;ical  tables. 

In  reading  the  author's  manuscript,  as  I  was  permitted 
to  do,  I  was  struck  with  its  absolute  freedom  from  all 
political  bias,  the  pure  ether  of  impartiality  that  marks 
every  page,  the  clear  and  well-defined  statement  of  fact, 
and,  above  all,  the  almost  faultless  analysis  and  symmetry 
of  the  entire  work. 

The  author  has  published  the  analysis  in  chart  form, 
separate  from  the  book,  in  large  type,  suitable  for  display 
in  the  schoolroom ;  and  has  thus  furnished  an  invaluable 
aid  in  the  study  of  the  book  and  in  class-rehearsals. 

We  commend  the  book  as  a  conscientious  one,  made  on 
honor,  and  calculated  to  last.  Not  only  graded  schools,  but 
colleges  and  the  higher  institutions  of  learning,  will  find  it 
of  advantage  to  introduce  it  into  their  course  of  study. 
The  student  of  civil  government  will  thank  the  author 
for  such  a  book,  as  it  will  surely  kindle  a  taste  for  the 
study  of  this  subject.  Besides,  it  will  do  much  to  remove 
the  popular  ignorance  regarding  our  institutions,  too  long 
prevalent  in  this  country,  where  the  humblest  citizen  is 
invested  with  the  attributes  of  political  sovereignty. 

JAMES  E.  LATIMER. 


CONTENTS. 


PART   I. 


Chapter  I. 

Early  Settlement  of  America 

Chapter  n. 
Origin  of  Land-Titles  in  United  States 

Chapter  HE. 
Common  Law  in  the  Colonies     . 

Chapter  IV. 
Colonial  Governments .... 

Chapter  V. 
Causes  of  the  American  Revolution  . 

Chapter  VI. 
Unity  of  the  Colonies  .... 

Chapter  VII. 
Articles  of  Confederation    . 

Chapter  Vm. 
Peculiarities  under  the  Confederation, 

Chapter  IX. 
Decline  and  Fall  of  the  Confederation, 

Chapter  X. 
Leading  Defects  of  the  Confederation, 


.  11 


13 


14 


14 


16 


18 


18 


21 


22 


Chapter  XI. 
Origin  of  the  Present  Constitution 

Chapter  xn. 
Ratification  of  the  Constitution  . 

Chapter  :^II. 
Amendments  to  the  Constitution 

^  Chapter  XTV. 

Departments  of  Government 


29 


33 


I. 
Declaration  of  Rights ,       ,       .       .    S5 

II. 
Declaration  of  Independence      .        .    40 

ni. 

Articles  of  Confederation    .        .        .45 

IV. 
Constitution  of  the  United  States       .    55 

V. 
Analysis  of  the  Constitution       .       .    78 
Appendix      ......  106 


PART  n. 

ANNOTATIONS  ON  THE  ANALYSIS. 


Preamble    . 
Departments 


CHAPTER   I. 
house  of  representatives. 
Article  7.  Proportion  . 
"       IT.  Apportionment  .        . 
*'     IIL  Eligibility    . 
"      IV.  Term    .... 
"        V.  By  whom  elected 
"      ri.  Electors 
"    VII.  Vacancies    . 
"  VIII.  Census 
"     IX.  House-Powers    . 

CHAPTER  n. 

UNITED-STATES  SENATE. 

Article  I.  How  composed  .        , 
"       II.  Eligibility    . 


109 
114 


114 
116 
119 
121 
122 
123 
124 
124 
126 


129 
130 


Art.  III.  Term   .        .        , 

.  132 

"     IV.  By  whom  chosen 

.        .  133 

"        V.  When  chosen      . 

.  134 

"      VI.  How  classed 

.  135 

"     VII.  Vacancies    . 

.  13(5 

"  VIII.  Vote    .        .        . 

.  137 

"      IX.  Presiding  Officer 

.  137 

*«        X  Senate-Powers  . 

.  141 

CHAPTER   HI. 

PROVISIONS  COMMON  TO  BOTH 

HOUSES. 

Article  I.  Membership 

.  148 

"       //.  Quorum 
"     ///.  Journal 

.  148 

.  119 

"     IV.  Yeas  and  Nays  , 

.  150 

"        V.  Business-Rules  . 

.  151 

"      VI.  Penalties      . 

.  151 

"    VII.  Prohibitions 

.  152 

"  VIII.  Official  Oath       . 

.  153 

"     IX.  Salaries 

.  154 

10 


CONTENTS. 


CHAPTER  IV. 

POWERS  OF  CONGRESS.  ,^0,. 
Article   I.  Finances     ....  157 
"        //.  Commerce  ....  163 

"      IIT.  Commercial       .        .  .133 

"       IV.  Penalties    .        .        .  .172 

"  V.  Postal         .        .        .  .175 

"       VI.  Patent  and  Copy  Rights  .  178 

"      VII.  War 131 

"  nil.  Judiciary  .  .  .  .188 
"  IX.  Naturalization  .  .  .189 
"  X.  Territory  .  .  .  .192 
"  XL  States  .  .  .  .197 
"  XII.  Executive  Vacancy  .  .  201 
"  XIII.  Appointments  .  .  .201 
"  XIV.  Constitutional  Amend- 
ments ,  .  •  .  .202 
"  XV.  Slavery  .  .  .  .203 
•'  XVI.  General  Law-making  .  205 
«  XVII.  Meeting      .        .        .  .208 

CHAPTER    V. 

L^W-MAKING. 

Article  I.  Proceedings       ,        .  .207 

First  Process  .        .  .207 

Second  Process      .  .  207 

Third  Process         .  .  208 

"        II.  Orders,  Resolutions,  and 

Votes       .        .        .  .211 

CHAPTER  VI. 

PROHIBITIONS  ON  THE  UNITED  STATES. 

Article  1.  Habeas  Corpus  .        .  .  211 

"        //.  Direct  Taxes      .        .  .  213 

"      ///.  Export  Duties    .        .  .213 

"      IV.  Inter-State  Commerce  .  214 

"         V.  Public  Money    .        .  .214 

"       VI.  Nobility      .        .        .  .215 

"      VII.  Penalties    .        .        .  .216 

"    VIIL  Foreign  Slave-Trade  .  217 

'*       IX.  Repudiation       .        .  .221 

"         X.  Freedom     .        .        .  .222 

CHAPTER  Vn. 

RELATING  TO  OFFICERS. 

Article  I.  Ineligibility        .        .  .225 

*♦        //.  Foreign  Patronage    .  .  227 

"      III.  The  President    .        .  .227 

"       IV.  Impeachment     .        .  .228 

CHAPTER   Vni. 

RIGHTS    OF     STATES. 

Article  I.  Representation  .        .  .  228 

//.  Citizenship         .        .  .230 

///.  State  Amity       .        .  .230 

IV.  New  States  .        .  ,  231 

V.  Elections     ,        .        .  .231 

VI.  Militia  Officers  .        .  .232 

VII.  Federal  Protection    .  .  232 
VIII.  Fugitives    ....  233 

IX.  Reservations      .        .  .  235 

CHAPTER    IX. 

STATE  SUBORDINATION. 

Article  I.  Originof  State  Obligations,  236 
"        11.  Supremacy    of   United- 
States  Authority     .  .  238 
"     JII.  Official  Oath       .        .  .239 


CHAPTER  X. 

STATE  PROHIBITIONS.  ,^„^ 

Article  I.  State  relations     .        .  .240 

'*       //.  Commercial         .        .  .  241 

"     ///.  War at4 

"      IV.  Penalties      .        .        .  .245 

"        V.  Nobility       .        .        .  .245 

"      VI.  Duties           .        .        .  .  245 

"    VII.  Slavery        .        .        .  .246 

CHAPTER    XI. 

PERSONAL     RIGHTS. 

Article  I.  Domicile      ....  249 

//.  Security       .        .        .  .249 

III.  Judicial        .        .        .  .250 

IV.  Criminal  Actions        .  .  252 
V.  Civil  Actions       .        .  .253 

VI.  Treason        .        .        .  .257 

VII.  Official  Immunities    .  .  259 


.       CHAPTER  Xn. 

EXECUTIVE  DEPARTMENT. 

Article  I.  In  whom  vested  .        .  .  250 

"       //.  Term 261 

"     ///.  Eligibility   .        .        .  .282 

"      IV.  Election       .        .        .  .263 

"        V.  Oath  of  Office    .        .  .271 

"      VI.  How  removable .        .  .271 

"     VII.  Salary ,         .        .        .  .272 

"  VIII.  Powers  and  Duties    .  .  272 


CHAPTER    Xm. 

VICE-PRESIDENT. 

Article  I.  Eligibility    .        .        .        .281 
"       //.  Election 
•'     III.  Oath  of  Office 
"      IV.  Term   . 
"        V.  Powers  and  Duties    .        .  283 


CHAPTER  XIV. 

JUDICIAL    DEPARTMENT. 

Article  I.  Where  vested  .  .  .  284 
"  //.  Judges  .  .  .  .287 
"     ///.  Jurisdiction        .        .        .289 

CHAPTER   XV. 

Article  I.  Presidents  of  the  United 

States  ,  .  .  .298 
««  II.  State  Department  .  .  299 
"  ///.  Treasury  Department  .  301 
"  IV.  War  Department  .  .  302 
"  V.  Navy  Department  .  .  305 
"  VI.  Post-office  Department  .  306 
"  VII.  Interior  Department  .  .  303 
"  VIII.  Attorney-General'ri  Office .  310 
"      IX.  Speakers  of  the  House  of 

Representatives  .  .  312 
'•        X.  Presidents  pro  tempore  of 

the  Senate        .        .        .314 

Glossary 317 

Index 331 


ANALYSIS  OF  CIVIL  GOVERNMENT. 


PART    L 

CHAPTER  I. 
EARLY  SETTLEMENT  OF  AMERICA. 

§1.  The  Nortii-American  Colonies,  over  which  the  British 
Goverament  maintained  supremacy  for  more  than  a  hundred  years, 
were  known  as  New  Hampshire,  Massachusetts,  Rhode  Island, 
Connecticut,  New  York,  New  Jersey,  Pennsylvania,  Delaware, 
Maryland,  Virginia,  North  Carolina,  South  Carolina,  and  Georgia. 
Ever  smce  the  Declaration  of  Ladependence,  they  have  been  called 


§  2.  They  were  settled  chiefly  by  British  subjects,  except  New 
York  and  Delaware ;  the  former  by  emigrants  from  Holland,  and 
the  latter  from  Holland  and  Switzerland. 

§  3.  The  British  claim  to  jurisdiction  over  these  Colonies  was 
founded  on  what  Christian  nations  recognized  as  the  right  of  dis- 
covery. Great  Britain  denied  from  the  beginning  the  right  of  the 
Dutch  to  make  settlements  in  America.  That  denial  was  based  on 
the  fact  that  John  Cabot  and  his  son  Sebastian,  British  subjects, 
under  commission  from  Henry  the  Seventh,  sailed  along  the  eastern 
coast  of  North  America  in  1497.  The  Cabots,  however,  made  no 
attempt  at  settlement  or  conquest. 

§  4.  At  the  time  of  its  settlement,  Delaware  was  an  appendage 

u 


12  ANALYSIS  OF   CIVIL  GOVERNMENT.       [Part  I. 

to  the  government  of  New  York ;  but  it  was  afterwards  separated 
from  that  Colony,  and  came  under  the  juiisdiction  of  Pennsylvania. 
New  York  was  early  wrested  from  the  Dutch  by  conquest,  and 
brought  under  British  authority. 

§  5.  The  only  title  which  the  nations  of  Europe  had  to  any  part 
of  the  American  continent  was  founded  on  what  they  called  the 
right  of  discovery.  It  is  difficult  to  comprehend  the  justice  of  this 
pretense,  when  it  is  known  that  the  country  was  already  occupied 
by  a  race  of  men  who  had  been  in  undisputed  possession  for  untold 
ages.  As  between  themselves,  it  might  not  be  unjust  or  improper 
that  the  European  nations  should  make  discovery  the  foundation  of 
title ;  but,  as  against  the  natives  of  the  soil,  discovery  could  not 
furnish  the  shadow  of  a  claim. 

§  6.  The  right  of  discovery  set  up  by  the  Europeans,  substantially 
ignores  the  sacred  rights  of  the  original  inhabitants  of  this  country. 
Nativity  must  furnish  a  more  valid  title  than  discovery ;  and  there 
is  not  a  people  on  earth  that  would  require  any  argument  to  con- 
vince them  of  this  where  their  own  rights  were  involved.  Demon- 
strations of  power  are  not  always  demonstrations  of  right. 

§  7.  The  Indians  have  always  been  treated  as  merely  lawful  occvr 
pants,  having  at  most  only  a  qualified  right  to  the  soil.  The  pow- 
erful nations  of  Europe,  and  our  own  government,  have  recognized 
them  only  as  tenants-at-will,  subject  to  removal  at  the  pleasure  of 
superior  power. 

§  8.  The  learned  Judge  Story  remarks  in  regard  to  the  wrongs  per- 
petrated on  the  red  man,  "  They  have  not  been  permitted,  indeed, 
to  alienate  their  possessory  right  to  the  soil,  except  to  the  nations 
to  whom  they  were  thus  bound  by  a  qualified  dependence  :  but,  in 
other  respects,  they  have  been  left  to  the  free  exercise  of  internal 
sovereignty  in  regard  to  the  members  of  their  own  tribe,  and  in 
regard  to  the  intercourse  with  other  tribes ;  and  their  title  to  the  soil, 
by  way  of  occupancy,  has  been  generally  respected,  until  it  has 
been  extinguished  by  purchase,  or  by  conquest,  under  the  authority 
of  the  nation  upon  which  they  were  dependent. 

§9.  *'A  large  portion  of  the  territory  in  the  United  States  to 
which  the  Indian  title  is  now  extinguished  has  been  acquired  by 


Part  I.] 


ORIGIN  OF  LAND-TITLES. 


13 


purchase;  and  a  still  larger  portion  by  the  irresistible  power  of 
arms,  over  a  brave,  hardy,  but  declining  race,  whoso  destiny  seems 
to  be  to  perish  as  fast  as  the  white  man  advances  upon  his  foot- 
steps." 


CHAPTER    n. 
ORIGIN  OF  LAND-TITLES  IN  THE   UNITED   STATES. 

§  1.  When  our  fathers  conquered  their  independence,  the  States 
and  United  States  succeeded  to  whatever  title  Great  Britain  pre- 
viously had  to  the  territory. 

§  2.  The  lapse  of  time,  and  general  acquiescence,  as  well  as  the 
judicial  and  legislative  authorities,  have  so  established  this  source  as 
the  foundation  of  land-titles,  that  its  validity  can  not  now  be  suc- 
cessfully called  in  question.  Whether  just  or  unjust,  it  will  prob- 
ably remain  for  ever  undisturbed. 

§  3.  But  these  remarks  are  applicable  to  those  lands  only  which 
were  obtained  through  the  revolutionary  struggle  with  Great  Britain, 
resulting  in  the  achievement  of  our  independence.  Extensive  addi- 
tions have  been  made  to  the  domain  of  this  country  by  treaties  with 
other  powers;  and,  of  course,  the  origin  of  land-titles  is  traceable 
within  any  such  territory  to  the  treaties  through  which  the  titles 
have  been  acquired. 

DATES  OF  THE  SETTLEMENTS  OP  THE  NORTH-AMERICAN  COLONIES. 


Virginia  .     .     . 

1606 

North  Carolina 

.     .     1663 

Massachusetts     . 

.     1620^ 

South  Carolina 

.     1663 

New  Hampshire 

1629 

New  Jersey  . 

.     1664 

Maryland      .      . 

1632 

Pennsylvania 

.     1681 

Connecticut  .     . 

1635 

Delaware 

.     1682 

Rhode  Island     . 

1636 

Georgia    .     . 

.     1732 

New  York    .     . 

1662 

These  dates  refer  only  to  permanent  settlements  made  under  dis- 
tinct organizations. 

^  Originally  called  the  Colony  of  Plymouth ;  but  afterwards  united  with  Massa- 
chusetta  proper,  which  was  settled  in  1628. 


14  ANALYSIS  OF  CIVIL  GOVERNMENT.       [Paet  I. 

CHAPTER  III. 
COMMON  LAW  IN  THE   COLONIES. 

§  1.  When  territory  is  found  uninhabited  at  the  origin  of  new 
settlements  therein,  it  is  usual  to  adopt  the  laws  of  the  nation  from 
which  the  settlers  have  migrated,  so  far  as  they  may  be  found  ap- 
plicable to  the  new  condition  of  things. 

Although  this  country  was  occupied  by  a  wild,  uncultivated,  and 
savage  population,  without  law  or  government  in  any  civilized  sense, 
the  colonists  chose  to  consider  themselves  as  settling  an  uninhabited 
territory.  As  a  large  proportion  of  the  new  settlers  of  these  Colonies 
were  from  England,  they  would  naturally  lean  to  the  jurisprudence 
of  that  country. 

§  2.  It  must  be  remembered,  also,  that  the  Colonics  were  nearly 
all  settled  under  the  patronage  and  favor  of  Great  Britain.  Those 
that  were  not,  soon  came  under  the  jurisdiction  of  the  British 
Crown. 

§  3.  These  are  the  principal  circumstances  that  led  to  the  adoption 
of  the  English  common  law  among  the  North-American  Colonies, 
and  which  constitutes  to  a  great  extent,  at  the  present  time,  the 
system  of  jurisprudence  in  this  country. 


CHAPTER    IV. 
COLONIAL    GOVERNMENTS. 
The  Colonial  Governments  may  properly  be  divided  into  three 

1.  Provincial, 

2.  Proprietary,  and 

3.  Charter. 

1,  Provincial  Governments. 

§  1.  The  Provincial  Governments  were  wholly  under  the  control 
of  the   sovereign   of    Great   Britain.      They  emanated   frou*   his 


Part  I.]  COLONIAL  GOVEKNMENTS.  15 

authority,  and  had  no  fixed  constitution  of  government.  The  king 
issued  his  commissions  to  the  royal  governors  from  time  to  time, 
accompanied  with  specific  instructions  which  were  to  be  obeyed. 

§  2.  The  governors  were,  under  these  governments,  regarded  as 
the  representatives  or  deputies  of  the  king.  The  king  also 
appointed  a  council,  having  limited  legislative  authority,  who 
were  to  assist  the  governor  in  the  discharge  of  his  official  duties. 
Both  governor  and  council  held  their  offices  during  the  royal 
pleasure. 

§  3.  The  governor  had  authority  to  convene  a  general  assembly 
of  the  representatives  of  the  freeholders  and  planters  of  the  Prov- 
ince. The  governor,  council,  and  representatives  constituted  the 
Provincial  Assembly. 

§  4.  Provincial  Assembly,  constituted  of, 

1st,  The  Representatives,  —  Lower  House ; 

2d.    The  Council,  —  Upper  House  ; 

3d.    The  Governor,  — 
having  a  veto  on  all  the  proceedings  of  the  two  houses,  with  power 
also  to  prorogue  and  dissolve  them.     These  constituted  the  local 
law-making  power,  subject  to  the  approval  or  disapproval  of  the 
Crown. 

§  5.  The  governor  appointed  the  judges  and  magistrates. 
Under  this  form  of  government  were  included  the  Colonies  of 
New  Hampshire,  New  York,  Virginia,  North  Carolina,  South  Caro- 
lina, Georgia. 

2,  Proprietary  Governments, 

§  6.  The  meaning  of  the  word  proprietary  is  owner,  or  proprie- 
tor. The  proprietor,  or  proprietary,  derived  not  only  the  title  to  the 
soil,  but  also  the  general  powers  of  government,  from  the  king. 
The  powers  of  government  extended  over  the  whole  territory  so 
granted,  which  became  a  kind  of  dependent  royalty. 

§  7.  Under  these  governments,  the  governors  were  appointed  by 
the  proprietary  or  proprietaries.  The  legislature  was  convened  and 
organized  according  to  the  will  of  the  proprietary.  He  also  had  the 
appointment  of  officers  of  every  grade. 


16  ANALYSIS   OF  CIVIL  GOVERNMENT.       [Part  I. 

§  8.  Lord  Baltimore  held  Maryland,  and  William  Penn  held 
Pennsylvania  and  Delaware,  under  this  form  of  government,  and  as 
proprietaries. 

3,  Charter  Governments, 

§  9.  These  were,  in  many  respects,  not  unlike  our  State  Govern- 
ments. They  were  created  by  letters  patent,  or  grants  of  the 
Crown,  which  conferred  the  soil  within  the  limits  defined,  and  all  the 
powers  of  government,  on  the  grantees  and  their  associates  and  suc- 
cessors. These  charters  were  similar  to  some  of  our  State  Constitu- 
tions, distributing  the  powers  of  government  into  three  departments, 
—  legislative,  executive,  and  judicial. 

§  10.  They  defined  the  powers  of  the  different  branches  of  the 
government,  and  secured  to  the  inhabitants  certain  political  privi- 
leges and  rights.  "  The  appointment  and  authority  of  the  governor, 
the  formation  and  structure  of  the  legislature,  and  the  establishment 
of  courts  of  justice,  were  specially  provided  for ;  and  generally  the 
powers  appropriate  to  each  were  defined." 

Massachusetts,  Rhode  Island,  and  Connecticut  had  charter  gov- 
ernments. 


CHAPTER    V. 
CAUSES  OF  THE  AMERICAN  REVOLUTION. 

§  1.  The  Colonies  were  not  sovereignties  in  any  political  sense, 
not  being  endowed  with  power  to  enter  into  alliances  or  treaties  with 
each  other  or  with  foreign  nations.  They  were  merely  dependen- 
cies on  the  British  Crown  ;  but  the  citizens  of  each  Colony  enjoyed 
the  full  rights  of  British  subjects  in  all  the  Colonies,  and  were  at 
liberty  to  move  from,  one  Colony  to  another,  and  to  become  inhabit- 
ants and  citizens  thereof. 

§  2.  The  growth  of  the  Colonies  was  slow  and  gradual,  running 
along  through  a  period  of  from  one  hundred  to  one  hundred  and 
fifty  years.  The  prerogatives  of  the  Crown  and  the  rights  of  the 
people  had  not  been  clearly  defined  on  the  one  side,  nor  accepted  on 


Part  I.]  CAUSES   OF  THE  REVOLUTION.  17 

the  other.  During  the  latter  part  of  this  period,  therefore,  the 
relative  rights  of  sovereign  and  subject  became  a  matter  of  serious 
and  earnest  contention. 

§  3.  The  Colonial  Legislatures  claimed  entire  and  exclusive 
authority  in  all  matters  relating  to  their  own  domestic  and  internal 
affairs.  They  denied  all  power  of  taxation,  except  under  laws 
passed  by  themselves ;  not  admitting  that  even  the  British  Parlia- 
ment and  Crown  combined  had  any  such  power.  They  insisted 
that  a  free  people  could  not  be  taxed  without  their  consent  in 
person,  or  through  their  accredited  representatives. 

§  4.  On  the  other  hand,  the  British  Parliament,  by  express 
declaration,  claimed  that  the  Colonies  and  Plantations  in  America 
have  been,  are,  and  of  right  ought  to  be,  subordinate  unto,  and 
dependent  upon,  the  imperial  Crown  and  Parliament  of  Great 
]3ritain ;  that  the  king,  with  the  advice  and  consent  of  Parliament, 
"  had,  hath,  and  of  right  ought  to  have,  full  power  and  authority  to 
make  laws  and  statutes  of  sufficient  force  and  validity  to  bind  tho 
Colonies  and  people  of  America  in  all  cases  whatsoever." 

§  5.  The  theory  that  Great  Britain  had  the  right  to  tax  the  Colo- 
nies, together  with  the  attempt  to  carry  that  doctrine  into  practice 
on  the  part  of  the  Crown  and  Parliament,  and  its  denial  on  the  part 
of  the  Colonies,  united  with  the  determination  on  their  part  to  carry 
that  denial  to  open,  practical  resistance,  led  to  final  separation  from 
all  connection  with  Great  Britain. 

§  6.  Hoping  to  prevent  this  result.  Parliament  passed  an  act 
intended  to  conciliate  the  Colonies,  which  declared  that  "  Parliament 
would  not  impose  any  duty  or  tax  on  the  Colonies,  except  for  the 
regulation  of  commerce  ;  and  that  the  net  produce  of  such  duty  or 
tax  should  be  applied  to  the  use  of  the  Colony  in  which  it  was 
levied."  But  this  did  not  satisfy  the  disaffected  colonists.  They 
claimed  to  be  sole  judges  of  what  should  be  done,  even  for  their  own 
good. 

§  7.  The  spirit  of  liberty  was  thus  aroused ;  and  a  sense  of  future 
danger  inspired  them  to  take  the  onward  steps  that  finally  led  to  tho 
Declaration  of  Independence  on  the  fourth  day  of  July,  1776. 

2 


18  ANALYSIS  OF  CIVIL  GOVEENMENT.       [Part  I. 

CHAPTER    VI. 
UNITY  OF  THE  COLONIES. 

§  1.  Although  the  Colonies  were  not  at  any  time  united  in  any 
sense  as  a  nation,  they  sometimes  found  it  of  advantage  to  unite 
temporarily  for  the  common  defense  against  the  Indian  tribes,  as 
well  as  the  Datch;  and  also  in  1754,  for  the  purpose  of  defending 
themselves  in  case  of  war  with  France,  which  at  that  time  seemed 
imminent. 

§  2.  These  experiences  had  taught  them  that  there  was  safety  as 
well  as  strength  in  union.  Therefore,  when  England  gave  evidence 
of  a  determination  to  oppress  the  Colonies,  they  did  not  hesitate  to 
unite  in  vindication  of  their  common  interests. 

§  3.  A  Congress,  at  the  call  of  Massachusetts,  assembled  in 
Philadelphia  Sept.  5,  1774,  consisting  of  delegates  from  all  the 
Colonies.  This  is  known  in  history  as  the  "  First  Continental  Con- 
gress."    It  was  the  first  in  which  all  the  Colonies  were  represented. 

§  4.  This  Congress  published  to  the  world  a  long  and  emphatic 
bill  of  rights,  which  may  be  regarded  as  the  first  decided  step 
towards  independence.  It  was  clear  to  every  reflecting  mind,  that, 
if  that  declaration  of  rights  were  accepted  by  the  people,  either 
England  must  take  a  speedy  backward  step,  or  the  declaration  of 
separation  and  independence  was  just  at  hand. 

§  5.  The  Second  Continental  Congress  assembled  in  Philadelphia 
May  10,  1775.  This  Congress  continued  in  session  until  the  close 
of  the  Revolutionary  War,  and  until  a  definite  form  of  government 
was  adopted.  It  passed  the  Declaration  of  Independence,  in  which, 
for  the  first  time,  the  Colonies  received  the  name  of  United  States 
of  America,  —  a  title  which  has  been  continued  ever  since. 


CHAPTER  YII. 

ARTICLES  OF  CONFEDERATION. 

§  I.   On  the  eleventh  day  of  June,  1776,  it  became  evident  that 
the  Declaration  of  Independence  was  only  a  question  of  a  few  days' 


Part  I.]  peculiarities.  19 

time,  as  a  committee  was  appointed  on  that  day  to  draft  such  a 
document  to  be  reported  to  Congress.  This  step  rendered  it  more 
than  ever  necessary  that  some  plan  of  union  between  the  Colonies 
should  be  adopted.  Another  committee  was  therefore  appointed  to 
prepare  Articles  of  Confederation,  which  should  bring  the  Colonies 
into  a  closer  and  more  definite  union. 

§  2.  This  committee  reported  a  plan  of  confederation  July  12 
following,  just  eight  days  after  the  adoption  of  the  Declaration  of 
Independence.  This  document  consisted  of  twenty  articles  as  it 
came  from  the  hands  of  the  committee.  It  was  discussed  at  various 
times  in  Congress,  running  through  a  period  of  some  sixteen  months, 
subjected  to  various  amendments,  consolidated  into  thirteen  articles, 
and  finally  adopted  by  Congress  Nov.  15,  1777. 

§  3.  The  Articles  of  Confederation  were  immediately  sent  to  all 
the  States,  with  the  Congressional  recommendation  for  their  approval 
and  adoption.  The  new  government  constituted  by  these  Articles 
was  not  to  go  into  operation  until  the  consent  of  all  the  States 
should  be  obtained. 

§  4.  In  July,  1778,  the  ratification  of  all  the  States  was  ob- 
tained, except  Delaware,  New  Jersey,  and  Maryland.  The  assent 
of  New  Jersey  was  given  Nov.  25  of  the  same  year ;  of 
Delaware,  Feb.  22,  1779;  and  of  Maryland,  March  1,  1781. 
On  the  second  day  of  March,  1781,  Congress  assembled  under 
the  Confederation. 

§  5.  But  the  Revolutionary  "War,  which  began  in  1775,  had  con- 
tinued all  this  time ;  during  which  the  States  had  been  united  by 
the  ties  of  a  common  interest,  by  the  sense  of  a  common  danger, 
and  by  the  necessities  of  a  common  cause,  having  no  written  bond 
of  union.     In  short,  they  were  held  together  by  their  fears. 


CHAPTER  VIII. 

PECULIARITIES    UNDER    THE    CONFEDERATION. 

Although  the  Articles  of  Confederation  are  given  in  full  in 
another   place,    it   is   deemed   proper   to   give  here  some  of  the 


20  ANALYSIS  OF  CIVIL  GOVERNMENT.       [Part  I. 

peculiarities  of  that  document  which  distinguish  it  from  the  present 
Constitution  of  the  United  States. 

§  1,  The  Confederation  was  declared  to  be  a  firm  league  of 
friendship  between  the  several  States. 

§  2.  Delegates  to  Congress  were  to  be  appointed  annually,  in 
such  manner  as  the  Legislature  of  each  State  might  direct. 

§  3.  The  power  was  reserved  to  the  States  to  recall  their  dele- 
gates, or  any  of  them,  within  the  year,  and  to  send  others  in  their 
places  for  the  remainder  of  the  year. 

§  4.  No  State  was  allowed  representation  in  Congress  by  less 
than  two,  nor  more  than  seven,  members. 

§  6.  No  person  was  eligible  to  a  seat  in  Congress  for  more  than 
three  in  any  term  of  six  years. 

§  6.  Each  State  had  to  maintain  its  own  delegates  in  a  meeting 
of  the  States,  and  while  acting  as  members  of  the  Committee  of  the 
States. 

§  7.  In  determining  questions  in  the  Congress,  each  State  had 
but  one  vote. 

§  8.  All  charges  of  war  and  other  expenses,  incurred  for  the  com- 
mon defense  and  general  welfare,  were  to  be  defrayed  out  of  a 
common  treasury. 

§  9.  The  treasury  was  to  be  supplied  by  the  several  States, 
in  proportion  to  the  value  of  all  lands,  and  the  improvements 
and  buildings  thereon,  within  each  State,  granted  to  or  surveyed 
for  any  person,  to  be  estimated  according  to  the  direction  of  Con- 
gress. 

§  10.  Congress  was  to  send  and  receive  ambassadors. 

§  11,  Congress  was  the  tribunal  of  last  resort,  on  appeal,  in  all 
disputes  and  differences,  between  two  or  more  States,  concerning 
boundary,  jurisdiction,  or  any  •ther  cause  whatever. 

§  12.  Congress  was  the  tribunal  to  decide  all  controversies  con- 
cerning the  private  right  of  soil  claimed  under  different  grants  of 
two  or  more  States,  under  certain  limitations. 

§  13.  Congress  was  to  commission  all  the  officers  of  the  United 
States. 

§  14.  Congress  had  authority  to  appoint   a   committee,   to  sit 


Part  I.]  DECLINE  OF  CONPEDERATIO]^.  21 

during  the  recess  of  that  body,  to  be  denominated  **  a  Committee  of 
the  States,"  and  to  consist  of  one  delegate  from  each  State. 

§  15.  Canada,  acceding  to  the  Confederation,  and  joining  in  the 
measures  of  the  United  States,  was  to  be  admitted  into  the  Union. 

§  16.  The  Union  was  to  be  perpetual. 

§  17.  No  provision  was  made  for  any  such  officer  as  President. 

§  18.  There  was  no  national  judiciary. 

§  19.  Congress  consisted  of  but  one  house. 


CHAPTER  IX. 
DECLINE  AND  FALL  OF  THE   CONFEDERATION. 

§  1.  The  National  Government,  under  the  form  and  Articles  of 
Confederation,  soon  demonstrated  its  own  weakness,  and,  in  *a  few 
years,  resulted  in  a  total  failure.  Six  years  of  war  experience  with- 
out this  bond  of  union,  two  years  of  like  experience  with  it,  and 
six  years  of  peace  experience  under  it,  convinced  the  statesmen  of 
that  day,  and  indeed  the  people  generally,  that  the  Confederacy  was 
merely  the  "  shadow  of  a  government,  without  the  substance." 

§  2.  The  education  of  the  leading  minds  and  statesmen  of  that 
day  was  but  a  revolutionary  education  ;  and  their  efforts  at  the 
framework  of  a  new  government  were  mainly  directed  to  such  a 
system  as  might  have  answered  the  purpose  under  the  revolutionary 
condition  of  things  through  which  they  were  passing. 

§  3.  But  a  few  years  of  peace  showed  that  the  States,  when  no 
longer  influenced  by  a  fear  inspired  by  a  sense  of  weakness,  would 
be  slow  to  render  obedience  to  a  power  of  which  they  were  jealous 
from  the  beginning,  and  which,  paradoxical  as  it  may  seem,  was 
contemptible  for  its  very  want  of  strength. 

§  4.  In  the  language  of  a  leading  mind  of  that  day,  **  By  this 
political  compact,  the  United  States  in  Congress  have  exclusive 
power  for  the  following  purposes,  without  being  able  to  execute  one 
of  them  :  — 

*'  1st.  They  may  make  and  conclude  treaties,  but  can  only  recom- 
mend the  observance  of  them. 


22 


ANALYSIS  OF  CIVIL  GOVERNMENT.       [Part  I. 


•'2d.  They  may  appoint  ambassadors,  but  can  not  defray  even 
the  expenses  of  their  tables. 

•'3d.  They  may  borrow  money  in  their  own  name  on  the  faith  of 
the  Union,  but  can  not  pay  a  dollar. 

"  4th.  They  may  coin  money,  but  they  can  not  purchase  an  ounce 
of  bullion. 

'•  5th.  They  may  make  war,  and  determine  what  number  of  troops 
are  necessary,  but  can  not  raise  a  single  soldier. 

*•  6th.  In  short,  they  may  declare  every  thing,  hiU  do  nothing.'' 


CHAPTER   X. 
LEADING  DEFECTS    OF   THE    CONFEDERATION. 

The  following  is  a  summary  of  the  leading  defects  of  the  Articles 
of  Confederation,  as  a  Constitution  for  a  nation  made  up  of  a  large 
number  of  States,  as  given  by  an  eminent  jurist  of  a  later  day  :  — 

§  1.  There  wag  an  utter  want  of  all  coercive  authority  in  the 
Continental  Congress  to  carry  into  effect  any  of  their  constitutional 
measures. 

§  2.  There  was  no  power  in  the  Continental  Congress  to  punish 
individuals  for  any  breach  of  their  enactments.  Their  laws  must 
be  wholly  without  penal  sanction. 

§  3.  They  had  no  power  to  lay  taxes,  or  to  collect  revenue  for 
the  public  service.  The  power  over  taxes  was  expressly  and  exclu- 
sively reserved  to  the  States. 

§  4.  They  had  no  power  to  regulate  commerce,  either  with  foreign 
nations,  or  among  the  several  States.  It  was  left,  with  respect  to 
both,  exclusively  to  the  management  of  each  particular  State,  thus 
being  at  the  mercy  of  private  interests  or  local  prejudices. 

§  5.  As  might  be  expected,  ••  the  most  opposite  regulations  ex- 
isted in  different  States ;  and  there  was  a  constant  resort  to  retalia- 
tory legislation  from  their  jealousies  and  rivalries  in  commerce,  in 
agriculture,  or  in  manufactures.     Foreign  nations  did  not  fail  to 


Part  I.]     ORIGIN  OF  PRESENT  CONSTITUTION.  23 

avail  themselves  of  all  the  advantages  accruing  from  this  suicidal 
policy,  tending  to  the  common  ruin. 

§  6.  '*  For  want  of  some  singleness  of  power,  —  a  power  to  act 
with  uniformity,  and  one  to  which  all  interests  could  be  reconciled, 
—  foreign  commerce  was  sadly  crippled,  and  nearly  destroyed." 

§  7.  The  country  was  deeply  in  debt,  without  a  dollar  to  pay,  or 
the  means  even  to  draw  a  dollar  into  the  public  treasury ;  and  what 
money  there  was  in  the  country  was  rapidly  making  its  way  abroad. 

§  8.  Great  as  these  embarrassments  were,  the  States,  full  of  jeal- 
ousy, were  tenaciously  opposed  to  making  the  necessary  concessions 
to  remedy  the  great  and  growing  evil.  All  became  impressed  with 
the  fear,  that,  unless  a  much  stronger  national  government  could  be 
instituted,  all  that  had  been  gained  by  the  Revolutionary  struggle 
would  soon  be  lost. 

§  9.  Many  of  the  more  prominent  patriots  and  statesmen  of  the 
day  had  made  the  effort  to  obtain  an  enlargement  of  the  powers  of 
Congress,  but  without  success.  It  became  evident,  that,  whatever 
else  might  be  done,  the  Confederacy,  as  such,  must  crumble  into 
ruins. 


CHAPTER  XI. 
ORIGIN  OF  THE  PRESENT   CONSTITUTION. 

§  1.  To  the  State  of  Virginia  belongs  the  immortal  honor  of  tak- 
ing the  first  step  that  led  to  the  formation  and  adoption  of  our  pres- 
ent Constitution  ;  and  to  the  illustrious  James  Madison,  more  than 
to  any  other  man,  must  be  awarded  the  distinction  of  making  the 
first  effective  move  in  that  direction. 

§  2.  On  the  21st  of  January,  1786,  the  legislature  of  Virginia 
passed  the  following  resolution  :  — 

''Resolved,  That  Edmund  Randolph,  James  Madison,  jun.,  Wal- 
ter Jones,  St.  George  Tucker,  and  Meri weather  Smith,  Esqs.,  be 
appointed  Commissioners,  who,  or  any  three  of  whom,  shall  meet 
such  commissioners  as  may  be  appointed  in  the  other  States  of  the 


24         .        ANALYSIS   OF   CIVIL  GOVERNMENT.      [Part  I 

Union,  at  a  time  and  place  to  be  agreed  on,  to  take  into  considera- 
tion the  trade  of  the  United  States  ; 

"  To  examine  the  relative  situations  and  trade  of  said  States ; 

"  To  consider  how  far  a  uniform  system  in  their  commercial  regu- 
lations may  be  necessary  to  their  common  interests  and  their  perma- 
nent harmony ; 

"  And  to  report  to  the  several  States  such  act  relative  to  this 
great  object,  as,  when  unanimously  ratified  by  them,  will  enable  the 
United  States  in  Congress  effectually  to  provide  for  the  same." 

§  3.  Just  previous  to  this,  in  1785,  Commissioners  had  been 
appointed  by  Virginia  and  Maryland  for  the  accomplishment  of  a 
more  limited  object,  and  which  more  exclusively  concerned  those, 
two  States. 

§  4.  Maryland  deemed  the  concurrence  of  her  neighbors,  Dela- 
ware and  Pennsylvania,  indispensable  in  the  matter ;  although  it 
related  only  to  settling  the  jurisdiction  on  waters  dividing  the  two 
States  of  Virginia  and  Maryland.  The  same  reasons  that  rendered 
it  necessary  that  Maryland  should  consult  her  neighbors  seemed  to 
render  it  equally  necessary  that  those  neighbors  should  consult  their 
neighbors. 

§  5.  It  was  thus  demonstrated,  that,  whatever  action  might  be 
taken  on  any  subject  of  general  concern,  it  would  extend  itself  or 
its  influences  all  over  the  Union.  This  illustration  of  the  neces- 
sity of  uniformity  in  matters  of  public  interest  had  its  influence  in 
impressing  all  minds  with  a  sense  of  the  importance  of  such  a  gen- 
eral Convention  as  was  now  recommended  in  the  resolution  of  the 
Virginia  Legislature. 

§  6.  The  time  and  place  of  the  proposed  Convention  being  left  to 
the  Virginia  Commissioners,  they  named  for  the  time  the  first  Mon- 
day in  September,  1786 ;  and  the  place,  Annapolis,  Md.  The  Com- 
missioners who  attended  from  Virginia  were  Messrs.  Randolph, 
Madison,  and  Tucker. 

§  7.  Although  there  was  a  strong  popular  feeling  in  favor  of  the 
proposed  Convention,  when  the  time  came  for  i|s  meeting,  only 
five  States  were  represented.  Some  of  them  had  not  even  ap- 
pointed Commissioners,  and  some  Commissioners  who  were  appointed 


Past  I.]      ORIGIK  OF  PKESENT  CONSTITUTION.  25 

failed  to  attend.  But  it  had  become  evident,  that,  notwithstanding 
this  Convention,  as  such,  was  a  failure,  public  opinion  was  advancing 
in  the  right  direction. 

§  8.  The  New-Jersey  deputation  had  a  commission  extending  its 
object  to  a  general  provision  for  the  "exigencies  of  the  Union." 
Acting  on  this  suggestion,  a  recommendation  for  this  enlarged  pur- 
pose was  reported  by  a  committee  to  whom  the  subject  had  been 
referred. 

§  9.  That  report  was  written  by  Alexander  Hamilton  of  New 
York,  and  addressed  to  the  legislatures  of  the  States  represented  in 
the  Convention;  viz.,  New  York,  Pennsylvania,  Virginia,  Dela- 
ware, and  New  Jersey. 

Commissioners  appointed  from  New  Hampshue,  Massachusetts, 
Rhode  Island,  and  North  Carolina,  failed  to  report  themselves  to 
the  Convention. 

The  States  of  Maryland,  Connecticut,  South  Carolina,  and  Geor- 
gia, did  not  appoint  Commissioners. 

§  10.  This  report  was  an  able,  lucid,  and  elaborate  document, 
recommending  another  convention  of  deputies  from  all  the  States, 
to  meet  on  the  second  Monday  of  May  following,  1787,  in  the  city 
of  Philadelphia.     A  copy  of  the  report  was  also  sent  to  Congress. 

§  11.  Virginia  again  took  the  lead,  and  was  the  first  to  act  favor- 
ably on  the  recommendation  to  appoint  deputies  to  the  proposed 
Philadelphia  Convention.  The  legislature  of  that  State  were  unani- 
mous, or  very  nearly  so,  in  their  response  to  the  call  of  the  report. 
*'  As  a  proof  of  the  magnitude  and  solemnity  attached  to  it,  they 
placed  Gen.  Washington  at  the  head  of  the  deputation  from  that 
State ;  and,  as  a  proof  of  the  deep  interest  he  felt  in  the  case,  he 
overstepped  the  obstacles  to  his  acceptance  of  the  appointment." 

§  12.  Congress  took  no  action  on  the  recommendation  of  the  re- 
port, until  the  legislature  of  New  York  instructed  its  delegation  in 
that  body  "  to  move  a  resolution,  recommending  to  the  several 
States  to  appoint  deputies  to  meet  in  Convention  for  the  purpose 
of  revising  and  proposing  amendments  to  the  Federal  Constitution." 

§  13.  Feb.  21,  1787,  a  resolution  was  moved  and  carried  in 
Congress,  recommending  a  Convention  to  meet  in  Pliiladelphia  at 


26  ANALYSIS   OF  CIVIL  GOVERNMENT.        [Part  I. 

the  time  siiggested  in  the  report,  * '  for  the  purpose  of  revising  the 
Articles  of  Confederation,  and  reporting  to  Congress  and  the  sev- 
eral State  legislatures  such  alterations  and  provisions  therein,  as 
shall,  when  agreed  to  in  Congress  and  confirmed  by  the  States, 
render  the  Federal  Constitution  adequate  to  the  exigencies  of  gov- 
ernment and  the  preservation  of  the  Union." 

§  14.  Public  opinion  was  on  the  rapid  march.  Many  events  had 
transpired,  even  after  the  appointment  of  commissioners  to  meet  at 
Annapolis,  and  before  that  Convention  assembled,  which  matured 
the  popular  judgment  in  favor  of  the  proposition  for  a  general  Con- 
vention for  the  purposes  set  forth  in  the  report. 

§  15.  Still  other  events  took  place  immediately  after  the  Hamil- 
ton report  was  published,  which  still  further  demonstrated  the  neces- 
sity of  such  a  Convention  as  was  proposed  therein.  All  were  now 
satisfied  that  the  Union  was  in  extreme  danger.  No  calm,  dispas- 
sionate observer  could  ignore  it. 

§  16.  "  Among  the  ripening  incidents,"  says  a  prominent  states- 
man of  that  day,  "was  the  insurrection  of  Shays  in  IMassachusetts 
against  her  government,  which  was  with  difficulty  suppressed,  not- 
withstanding the  influence  on  the  insurgents  of  an  apprehended  in- 
terposition of  the  Federal  troops." 

§  17.  The  insurrection  above  alluded  to  was  led  by  one  Daniel 
Sliays,  who  was  followed  by  about  two  thousand  insurgents,  having 
for  their  object  the  open  defiance  and  resistance  of  the  laws  under 
which  the  taxes  were  to  be  collected  and  private  obligations  and 
contracts  to  be  enforced.  It  spread  over  several  of  the  counties  of 
that  State;  and  so  formidable  was  it,  that  United-States  troOps  were 
called  for  to  suppress  it.  But,  by  vigorous  measures  on  the  part  of 
the  State,  it  was  overcome.  Several  of  the  leaders  were  condemned 
to  death ;  but,  on  account  of  the  popular  sentiment  in  their  favor,  it 
was  deemed  unwise  to  execute  them. 

§  18.  The  public  debt,  most  of  which  had  been  contracted  in  the 
sacred  cause  of  liberty  in  the  struggle  for  independence,  remained 
unpaid.  Congress  had  made  repeated  calls  on  the  States  for  pay- 
ment :  but  these  calls  were  either  partially  or  wholly  unheeded ;  one 
State   expressly  and  openly  refusing  to  take  any  step  tending  to  its 


Part  I.]    ORIGIN  OF  present  constitution.  27 

liquidation.  The  public  mind  was  everywhere  filled  with  gloom  and 
despondency. 

§  19.  In  reference  to  the  embarrassments  of  commerce,  Mr. 
Madison  says,  '*  The  same  want  of  a  general  power  over  com- 
merce led  to  an  exercise  of  the  power  separately  by  the  States, 
which  not  only  proved  abortive,  but  engendered  rival,  conflicting, 
and  angry  regulations. " 

§  20.  "  Besides  the  vain  attempt  to  supply  their  respective  treas- 
uries by  imposts,  which  turned  their  commerce  into  the  neighboring 
ports,  and  to  coerce  a  relaxation  of  the  British  monopoly  of  the  West- 
India  navigation,  which  was  attempted  by  Virginia,  the  States  hav- 
ing ports  for  foreign  commerce  taxed  anil  irritated  the  adjoining 
States,  trading  through  them,  as  New  York,  Pennsylvania,  Vir- 
ginia, and  South  Carolina.  Some  of  the  States,  as  Connecticut, 
taxed  imports  from  other  States,  as  Massachusetts;  which  com- 
plained in  a  letter  to  the  Executive  of  Virginia,  and  doubtless  to 
those  of  other  States." 

§  21.  "In  sundry  instances,  as  of  New  York,  New  Jersey, 
Pennsylvania,  and  Maryland,  the  navigation  interests  treated  the 
citizens  of  other  States  as  aliens."   .  .   . 

§  22.  •*  As  a  natural  consequence  of  this  distracted  and  dis- 
heartening condition  of  the  Union,  the  Federal  authority  had  ceased 
to  be  respected  abroad  ;  and  dispositions  were  shown  there,  particu- 
larly in  Great  Britain,  to  take  advantage  of  its  imbecility,  and  to 
speculate  on  its  approaching  downfall.  At  home  it  had  lost  all 
confidence  and  credit :  the  unstable  and  unjust  career  of  the  States 
had  also  forfeited  the  respect  and  confidence  essential  to  order  and 
good  government,  involving  a  general  decay  of  confidence  between 
man  and  man." 

§  23.  Under  these  distracting  and  depressing  influences,  the 
States  had  become  favorable  to  the  call  from  Annapolis  to  send 
delegates  to  the  proposed  Philadelphia  Convention,  which  convened 
at  the  time  appointed.  There  was  by  no  means  a  full  representa- 
tion of  the  States,  however ;  there  being  present  but  twenty-nine 
delegates  at  the  opening.  But,  as  there  was  good  reason  to  believe 
that   there  would   soon   be  a  larger  number,   they  proceeded  to 


28  ANALYSIS   OF   CIVIL   GOVERNMENT.       [Part  I. 

organize  by  choosing  George  Washington  president.  He  received 
the  unanimous  vote. 

§  24.  There  being  so  few  delegates  present,  the  Convention  did 
not  proceed  immediately  to  business,  but  adjourned  from  day  to  day 
until  Monday  the  28th.  The  Convention  sat  with  closed  doors ; 
and  remained  in  session  until  the  seventeenth  day  of  September 
following,  when  they  reported  the  draft  of  the  present  Constitution 
of  the  United  States. 

§  25.  By  a  resolution  of  the  Convention,  it  was  laid  before  the 
United  States  in  Congress  assembled,  with  the  recommendation  that 
it  should  be  submitted  to  a  Convention  of  delegates  chosen  in  each 
State  by  the  people  thereof,  under  the  direction  of  its  legislature, 
for  their  assent  and  ratification  ;  and  that  each  Convention  assenting 
to  and  ratifying  the  same  should  give  notice  thereof  to  the  United 
States  in  Congress  assembled. 

§  26.  The  original  intention  and  object  of  the  Convention  were, 
it  will  be  remembered,  simply  to  revise  and  amend  the  Articles  of 
Confederation.  But  the  Convention  early  came  to  the  conclusion 
that  it  was  necessary  to  form  an  entirely  new  Constitution. 

§  27.  With  the  report  to  Congress,  the  Convention  addressed  a 
letter  to  that  body,  giving  the  reasons  for  their  proceedings.  The 
Convention  also  passed  two  resolutions,  copies  of  which  were  sent  to 
Congress ;  the  substance  of  one  of  which  has  been  already  given, 
and  both  of  which,  with  the  letter,  will  be  found  appended  to  the 
Constitution  in  this  work. 

§  28.  Sept.  28,  1787,  Congress  having  received  the  report  of  the 
Convention,  unanimously 

*'  Resolved,  That  the  said  report,  with  the  resolutions  and  letter 
accompanying  the  same,  be  transmitted  to  the  several  legislatures,  in 
order  to  be  submitted  to  a  Convention  of  delegates  chosen  in  each 
State  by  the  people  thereof,  in  conformity  to  the  resolves  of  the 
Convention  made  and  provided  in  that  case." 

§  29.  By  the  terms  of  the  new  Constitution,  the  ratification  of 
the  Conventions  of  nine  States  was  declared  sufficien^i  for  its 
establishment  between  the  States  so  ratifying  the  same. 


Part  I.]         RATIFICATION  OF  CONSTITUTION.  29 

CHAPTER  XII. 
RATIFICATION   OF  THE   CONSTITUTION. 

§  1.  The  new  Constitution  was  now  fairly  before  the  people  of 
the  United  States.  It  met  from  the  outset  with  very  strong  opposi- 
tion ;  and  the  attacks  were  as  various  as  the  points  of  the  compass. 

§  2.  One  class  of  objectors  held  that  it  gave  too  much  power 
into  the  hands  of  the  Federal  Government ;  and  another,  that  it  did 
not  give  enough. 

One  maintained  that  the  Senate  should  be  elected  for  life; 
another,  that  six  years  was  quite  too  long.  One,  that  it  should  be 
elected  by  the  people ;  another,  that  it  should  be  elected  by  the 
House  of  Representatives. 

Some  held  that  the  terms  of  office  generally  were  quite  too  long ; 
others,  that  they  were  too  short. 

§  3.  One  class  thought  the  President  should  be  elected  for  life ; 
one,  for  ten  years ;  one,  for  six ;  and  another,  that  he  should  be  elected 
annually.  One  class  held  that  he  ought  to  be  elected  by  Congress ; 
another,  that  he  should  be  elected  by  direct  vote  of  the  people  ;  and 
still  another,  that  we  could  get  along  very  well  without  any  Presi- 
dent at  all. 

One  class  thought  the  Constitution  invested  the  President  with 
too  much  power;  and  another,  with  too  little. 

§  4.  Similar  objections  were  urged  against  the  House  of  Repre- 
sentatives. Some  were  for  having  the  members  elected  by  electors 
for  that  purpose  appointed  ;  others,  for  having  them  elected  by  the 
State  legislatures.  Some  thought  the  term  of  two  years  too  short ; 
others,  too  long.  The  objections  against  the  judiciary  were  quite  as 
various  and  opposite. 

§  5.  The  storm  raged  with  terrible  political  and  personal  violence 
and  asperity.  Probably  at  no  time  in  the  history  of  this  countiy 
has  party  spirit  run  so  high  as  at  that  time.  Every  feature  of  the 
new  plan  of  government  was  debated  by  the  ablest  minds  of  the  day. 
Profound  statesmen  were  found  in  the  ranks  of  opposition  to  the 
Constitution,  —  men  whose  patriotism,  and  purity  of  motive,  could 


80  ANALYSIS   OF   CIVIL  GOVERNMENT.       [Part  I. 

not  be  questioned.  Even  some  of  the  members  of  the  Convention 
that  framed  that  document,  able  and  influential  members  too,  not 
only  refused  to  sign  it  for  submission  to  the  people,  but  went  out 
amongst  their  constituencies,  and  denounced  it  to  the  last. 

§  6.  But  the  friends  of  the  new  Constitution  finally  triumphed. 
Three  States  ratified  it  before  the  close  of  the  year  1787,  and  eight 
more  by  the  26th  of  July,  1788 ;  so  that,  in  less  than  one  year 
from  the  time  of  its  submission  to  the  people,  a  sufficient  number 
of  States  had  accepted  it  as  the  fundamental  law  of  the  land  to 
warrant  the  commencement  of  operations  under  it. 

§  7.  Sept.  13,  1788,  Congress  passed  a  resolution  appointing 
the  first  Wednesday  in  January  following  for  the  choice  of  electors 
of  President  of  the  United  States ;  the  first  Wednesday  of  Febru- 
ary of  the  same  year  for  the  meeting  of  the  electors  to  vote  for  that 
officer ;  and  the  first  Wednesday  of  March  thereafter  for  commen- 
cing proceedings  under  the  Constitution  at  New  York,  which  was 
then  the  place  of  the  meetings  of  Congress. 

§  8.  Electors  were  accordingly  appointed,  and  their  votes  given 
for  President.  Elections  of  members  of  the  House  of  Representa- 
tives by  the  people,  and  for  senators  by  the  State  legislatures,  were 
held ;  so  that  on  Wednesday,  the  fourth  day  of  March,  1789,  the 
first  Constitutional  Congress  met,  and  proceedings  were  commenced 
under  the  new  organization. 

§  9.  In  those  days,  travel  was  far  more  difficult  than  in  these  later 
days  of  railroad  facilities.  A  quorum  in  Congress,  therefore,  did 
not  assemble  until  the  6th  of  April,  at  which  time  the  votes  for 
President  were  counted  ;  and  it  was  found  that  Greorge  Washington 
was  unanimously  elected,  having  received  sixty-nine  votes,  —  the 
whole  number.  John  Adams  of  Massachusetts  was  elected  Vice- 
President  ;  receiving  thirty-four  votes,  the  next  highest  number. 

§  10.  April  30,  1789,  the  President  elect  took  the  constitutional 
oath  of  office,  it  being  administered  to  him  by  the  Chancellor  of 
the  State  of  New  York ;  and  the  new  government  went  into  full 
operation. 

On  the  twenty -first  day  of  April,  John  Adams  entered  on  his 
duties  as  President  of  the  Senate,  and  Vice-President  of  the  United 
States. 


Paut  I.]       amendm?:nts  to  constitution.  31 

§  11.  "Thus  was  achieved,"  says  Judge  Story,  "another  and 
still  more  glorious  triumph  in  the  cause  of  national  liberty  than 
even  that  which  separated  us  from  the  mother  country.  By  it  we 
fondly  trust  that  our  republican  institutions  will  grow  up,  and  be 
nurtured  into  more  mature  strength  and  vigor ;  our  independence 
be  secured  against  foreign  usurpation  and  aggression  ;  our  domestic 
blessings  be  widely  diffused  and  generally  felt ;  and  our  union,  as 
a  people,  be  perpetuated  as  our  own  truest  glory  and  support,  and 
as  a  proud  example  of  a  wise  and  beneficent  government,  entitled 
to  the  respect,  if  not  the  admiration,  of  mankind." 

§  12.  The  number  of  original  States,  as  they  are  usually  called, 
was  thirteen.  The  following  table  exhibits  the  dates  of  the  ratifica- 
tion of  the  new  Constitution  by  these  States  respectively :  — 

Delaware,  Dec.  7,  1787. 

Pennsylvania,  Dec.  12,  1787. 

New  Jersey,  Dec.  18,  1787. 

Georgia,  Jan.  2,  1788. 

Connecticut,  Jan.  9,  1788. 

Massachusetts,  Feb.  6,  1788. 

Maryland,  April  28,  1788. 

South  Carolina,  May  23,  1788. 

New  Hampshire,  June  21,  1788. 

Virginia,  June  26,  1788. 

New  York,  July  26,  1788. 

North  Carolina,  Nov.  21,  1789. 

Rhode  Island,  May  29,  1790. 


CHAPTER   XIII. 

AMENDMENTS   TO   THE   CONSTITUTION. 

§  1.  The  chief  design  of  this  work,  but  for  which  it  would  not 
have  been  written,  being  the  treatment  of  the  Constitution  by 
topics,  renders  it  necessary  to  refer,  in  this  place,  to  the  amend- 
ments which  have  been  made  to  that  instrument.     Indeed,  to  carry 


32  ANALYSIS  OF  CIVIL  GOVERNMENT.       [Part  I. 

out  the  desi<^n,  no  distinction  can  be  made  between  the  orio-inal 
instrument  and  its  amendments  :  they  must  all  be  treated  as  one 
document  in  the  Analysis,  as  they  are  in  fact. 

§  2.  One  of  the  strongest  objections  urged  by  its  opponents 
against  the  adoption  of  the  Constitution  as  it  came  from  the  hands 
of  the  Convention  was,  the  want  of  a  recognition  of  certain  rights 
of  citizens,  several  of  which  have  since  been  adopted  as  amendments 
to  the  Constitution.  Those  who  were  vehement  in  their  opposition 
to  the  ratification  of  the  instrument  were  emphatic  in  urging  that  it 
ought  to  contain  such  a  bill  of  rights  as  would  insure  individual 
safety  among  the  people. 

§  3.  The  people  had  been  unused  to  a  national  government  that 
could  reach  individuals  ;  that  is,  that  could  reach  them  directly : 
for,  under  the  Confederation,  the  government  was  utterly  powerless 
to  punish.  There  was  a  popular  clamor,  therefore,  for  a  compre- 
hensive bill  of  rights.  The  people  feared  governmental  encroach- 
ments on  individual  rights. 

§  4.  Most  of  the  amendments  to  the  Constitution  w^ere  adopted 
under  this  apprehension,  and  within  a  few  years  after  the  organiza- 
tion of  the  new  government.  The  Constitution  contained  provisions 
for  its  own  amendment ;  for  its  illustrious  authors  never  claimed 
that  it  was  by  any  means  perfect. 

§  5.  At  the  first  session  of  the  first  Congress  under  the  Constitu- 
tion, therefore,  held  in  New  York,  that  body  passed  a  resolution, 
Sept.  25,  1789,  two-thirds  of  both  houses  concurring,  proposing 
to  the  legislatures  of  the  several  States  twelve  articles  of  amendment 
to  the  Constitution. 

§  6.  Ten  of  these  articles  were  ratified  by  the  States  in  the  fol- 
lowing order,  viz.  :  — 

New  Jersey,  Nov.  20,  1789. 

Maryland,  Dec.  19,  1789. 

North  Carolina,  Dec.  22,  1789. 

South  Carolina,  Jan.  19,  1790. 

New  Hampshire,  Jan.  25,  1790. 

Delaware,  Jan.  28,  1790. 

Pennsylvania,  March  10,  1790. 


Part  I.]       departments  of  government.  83 

New  York,  March  27,  17S0. 

Rhode  Island,  June  15, 1790. 

Vermont,  Nov.  3,  1791. 

Virginia,  Dec.  15,  1791. 
§  7.  As  the   legislatures  of  three-fourths  of  the   several   States 
concurred  in  the  first  ten  articles  of  amendment  proposed,  they  be- 
came valid  to  all  intents  and  purposes  as  a  part  of  the  Constitution 
from  Dec.  15,  1791. 

§  8.  The  eleventh  article  of  amendment  was  proposed  by  the 
Third  Congress  at  its  first  session,  March  15,  1794.  President 
Adams  declared  in  his  message  to  Congress,  Jan.  8,  1798,  that  it 
bad  received  the  ratification  of  the  constitutional  number  of  States, 
and  was  therefore  a  part  of  the  fundamental  law  of  the  land. 

§  9.  The  twelfth  article  of  amendment  was  proposed  at  the  first 
session  of  the  Eighth  Congress,  Dec.  12,  1803,  and  received  the  rati- 
fication of  the  requisite  number  of  States  during  the  following  year, 
and  became  part  of  the  Constitution. 

§  10.  The  thirteenth  article  of  amendment  was  proposed  at  the 
second  session  of  the  Thirty-eighth  Congress,  passing  the  Senate 
April  8,*1864,  and  the  House  Jan.  31, 1865.  William  H.  Seward, 
Secretary  of  State,  officially  announced  to  the  country,  Dec.  18, 
1865,  that  it  had  been  ratified  by  three-fourths  of  the  States,  and 
was  therefore  a  part  of  the  supreme  law  of  the  land.^ 


CHAPTER    XIV. 

DEPARTMENTS  OF  GOVERNMENT. 

§  1.  No  free  government  can  exist  on  earth,  in  which  the  admin- 
istration of  its  powers  and  functions  is  not  distributed.  Let  one 
man  have  the  power  to  make  the  laws,  to  interpret  them,  and  to 
execute  the  same,  and  that  man  will  become  a  despot,  and  his  gov- 
ernment a  despotism.  Human  nature  must  be  made  over  anew,  or 
such  a  result  must  follow  such  an  investment  of  authority  in  a  single 
individual. 

»  The  fourteenth  Article  of  Amendments  has  been  adopted  since  this  work  was 
prepared  for  the  press,  —  too  late  for  comment  or  analysis  in  the  proper  place. — 
See  page*  74  and  106. 


34  ANALYSIS   OF  CIVIL  GOVERNMENT.       [Part  I. 

§  2.  If  this  concentration  of-  powers  shall  be  extended  to  an  in- 
definite number  of  men,  whether  that  number  be  few  or  many,  the 
character  of  the  government  will  remain  unchanged.  One  or  more 
persons  might  safely  be  trusted  with  either  one  of  these  high  pre- 
rogatives ;  but  the  danger  consists  in  the  concentration  of  all  in  the 
same  hands. 

§  3.  All  writers  on  free  government  agree,  that  the  legislative, 
the  executive,  and  the  judicial  powers  should  be  kept  as  separate 
and  distinct  as  possible.  It  is  hardly  possible,  however,  for  human 
wisdom  to  devise  a  plan  by  which  they  can  be  kept  entirely  separate 
in  the  administration  of  government. 

§  4.  This  has  been  attempted  by  the  wisest  and  best  of  minds, 
but  has  failed.  Not  one  of  all  the  American  States  has  succeeded  ; 
though,  in  some  instances,  they  may  have  done  all  that  finite  wisdom 
could  accomplish.  But  in  all  cases,  without  a  single  exception, 
there  has  been  a  partial  mixture  of  these  powers. 

§  5.  In  several  of  the  States,  for  instance,  the  Executive  is  elected 
by  the  legislature,  if  no  one  receives  a  majority-vote  by  the  people. 
In  one  State  he  is  elected  by  the  legislature,  without  any  attempt 
at  an  election  by  the  people. 

In  nearly  all  of  the  States,  the  judicial  officers  are  impeachable 
by  one  or  both  branches  of  the  legislature.  In  some  of  the  States, 
the  officers  of  the  judiciary  are  appointed  by  the  governor  and 
the  legislature,  or  one  branch  of  that  body. 

In  others,  the  governor  may  veto  any  act  passed  by  the  legisla- 
ture ;  after  which,  in  order  that  the  act  so  vetoed  may  become  a 
law,  it  must  be  re-passed  by  a  two-thirds  majority  of  both  houses. 

In  some  States,  the  judicial  officers  are  elected  by  the  people,  but 
removable  on  the  address  of  one  or  both  branches  of  the  legislature. 
In  others,  they  are  removable  by  one  or  both  branches,  on  the  ad- 
dress of  the  Executive.  In  still  others,  the  judicial  officers  are 
appointed  by  one  or  both  branches  of  the  legislature,  and  removable 
by  one  branch  on  impeachment  by  the  other. 

§  6.  In  fact,  there  is  no  such  thing  as  a  complete  and  absolute 
separation  of  the  three  departments  from  each  other.  And  all  that 
is  intended,  in  speaking  of  the  three  branches  being  kept  separate 


Part  I.]  DECLAEATION  OF  RIGHTS.  35 

and  distinct,  is,  that  the  powers  and  duties  properly  belonging  to  any 
one  branch  or  department  shall  not  be  interfered  with  or  adminis- 
tered by  either  of  the  others  ;  that  neither  shall  possess  a  controlling 
influence  over  the  others  in  the  performance  of  their  respective  duties. 

§  7.  In  order  that  there  may  be  official  independence,  it  is  neces- 
sary "that  the  legislative,  executive,  and  judiciary  powers  shall 
be  kept  as  separate  from,  and  independent  of,  each  other,  as  the 
nature  of  a  free  government  will  admit,  or  as  is  consistent  with 
that  chain  of  connection  that  binds  the  whole  fabric  of  the  Consti- 
tution in  one  indissoluble  bond  of  unity  and  amity." 

§  8.  The  Constitution  of  the  United  States  aims  to  separate  the 
three  departments  as  widely  as  possible,  and  to  render  them  as  inde- 
pendent, the  one  of  the  others,  as  the  complicated  nature  of  the 
subject  will  permit.  The  government  of  the  United  States  is  a 
representative  government ;  and  there  is  far  less  danger  to  liberty 
arising  from  the  partial  mixture  of  these  powers  in  this  country, 
than  in  a  government  of  less  direct  responsibility  to  the  people. 


The  following  is  the  Declaration  of  Rights  made  by  the  first  Con- 
tinental Congress,  Oct.  14,  1774,  —  nearly  two  years  before  the 
Declaration  of  Independence.  But  it  was  not  difficult  to  foresee 
that  separation  from  the  mother  country  was  imminent,  unless  Great 
Britain  or  the  Colonies  should  take  an  immediate  backward  step. 
Indeed,  this  Declaration  of  Bights  foreshadowed  the  Declaration  of 
Independence. 

DECLARATION  OF  RIGHTS. 

Whereas,  since  the  close  of  the  last  war,  the  British  Parliament, 
claiming  a  power  of  right  to  bind  the  people  of  America  by  statutes 
in  all  cases  whatsoever,  hath,  in  some  acts,  expressly  imposed  taxes 
on  them,  and  in  others,  under  various  pretenses,  but  in  fact  for  the 
purpose  of  raising  a  revenue,  hath  imposed  rates  and  duties  paya- 


36  ANALYSIS   OF   CIVIL  GOVEENMENT.       [Part  I. 

ble  in  these  Colonies,  established  a  board  of  commissioners  with 
unconstitutional  powers,  and  extended  the  jurisdiction  of  admiralty, 
not  only  for  collecting  the  said  duties,  but  for  the  trial  of  causes 
merely  arising  within  the  body  of  a  county  ; 

And  whereas,  in  consequence  of  other  statutes,  judges,  who 
before  held  only  estates  at  will  in  their  offices,  have  been  made 
dependent  on  the  Crown  alone  for  their  salaries,  and  standing  armies 
kept  in  time  of  peace  ;  and  whereas,  it  has  lately  been  resolved 
in  Parliament,  that,  by  force  of  a  statute  made  in  the  thirty-fifth 
year  of  the  reign  of  King  Henry  the  Eighth,  colonists  may  be  trans- 
ported to  England,  and  tried  there  upon  accusations  for  treasons,  and 
misprisions  or  concealments  of  treasons,  committed  in  the  Colonies, 
and  by  a  late  statute  such  trials  have  been  directed  in  cases  therein 
mentioned  ; 

And  whereas,  in  the  last  session  of  Parliament,  three  statutes 
were  made,  — one  entitled  an  "  Act  to  discontinue,  in  such  manner 
and  for  such  time  as  are  therein  mentioned,  the  Landing  and  Dis- 
charging, Lading  or  Shipping,  of  Goods,  Wares,  and  Merchandise  at 
the  Town  and  within  the  Harbor  of  Boston,  in  the  Province  of  Mas- 
sachusetts Bay,  in  New  England ;  "  and  another  statute  was  then 
made,  "  for  Making  more  Eifectual  Provisions  for  the  Government 
of  the  Province  of  Quebec,"  &c.,  —  all  which  statutes  are  impolitic, 
unjust,  and  cruel,  as  well  as  unconstitutional,  and  most  dangerous 
and  destructive  of  American  rio:hts  ; 

And  whereas,  assemblies  have  been  frequently  dissolved,  contrary 
to  the  rights  of  the  people,  when  they  attempted  to  deliberate  on 
grievances  ;  and  their  dutiful,  humble,  loyal,  and  reasonable  peti- 
tions to  the  Crown  for  redress  have  been  repeatedly  treated  with 
contempt  by  his  majesty's  ministers  of  State  ; 

The  good  people  of  the  several  Colonies  of  New  Hampshire,  Mas- 
sachusetts Bay,  Rliode  Island  and  Providence  Plantations,  Connec- 
ticut, New  York,  New  Jersey,  Pennsylvania,  New  Castle,  Kent  and 
Sussex  on  Delaware,  Maryland,  Virginia,  North  Carolina,  and  South 
Carolina,  justly  alarmed  at  these  arbitrary  proceedings  of  Parliament 
and  Administration,  have  severally  elected,  constituted,  and  appointed 
deputies  to  meet  and  sit  in  General  Congress,  in  the  city  of  Phila- 


Part  I.]        '        DECLARATION   OF  RIGHTS.  37 

delphia,  in  order  to  obtain  such  establishment  as  that  their  religion, 
laws,  and  liberties  may  not  be  subverted.  Whereupon  the  deputies 
so  appointed,  being  now  assembled  in  a  full  and  free  representation 
of  these  Colonies,  taking  into  their  most  serious  consideration  the 
best  means  of  attaining  the  ends  aforesaid,  do  in  the  first  place,  as 
Englishmen,  their  ancestors,  in  like  cases  have  usually  done,  for 
affecting  and  vindicating  their  rights  and  liberties,  DECLARE,  — 

That  the  inhabitants  of  the  English  Colonies  in  North  America,  by 
the  immutable  laws  of  nature,  the  principles  of  the  English  Consti- 
tution, and  the  several  charters  or  compacts,  have  the  following 
RIGHTS  :  — 

Resolved^  N.  C.  D.,i  1.  That  they  are  entitled  to  life,  liberty,  and 
property ;  and  they  have  never  ceded  to  any  sovereign  power  what- 
ever a  right  to  dispose  of  either  without  their  consent. 

Eesolcedj  N.  C.  D.,  2.  That  our  ancestors,  who  first  settled  these 
Colonies,  were,  at  the  time  of  their  emigration  from  the  mother 
country,  entitled  to  all  the  rights,  liberties,  and  immunities  of  free 
and  natural  born  subjects  within  the  realm  of  England. 

Resolved,  N.  C.  D.,  3.  That,  by  such  emigration,  they  by  no 
means  forfeited,  surrendered,  or  lost  any  of  those  rights ;  but  that 
they  were,  and  their  descendants  now  are,  entitled  to  the  exercise 
and  enjoyment  of  all  such  of  them  as  their  local  and  other  circum- 
stances enable  them  to  exercise  and  enjoy. 

Resolved,  4.  That  the  foundation  of  English  liberty,  and  of  all 
free  government,  is  a  right  in  the  people  to  participate  in  their 
legislative  council ;  and  as  the  English  colonists  are  not  represented, 
and  from  their  local  and  other  circumstances  can  not  properly  be 
represented,  in  the  British  Parliament,  they  are  entitled  to  a  free 
and  exclusive  power  of  legislation  in  their  several  Provincial  legisla- 
tures, where  their  right  of  representation  can  alone  be  preserved,  in 
all  cases  of  taxation  and  internal  polity,  subject  only  to  the  negative 
of  their  sovereign,  in  such  manner  as  has  been  heretofore  used  and 
accustomed.  But  from  the  necessity  of  the  case,  and  a  regard  to 
the  natural  interests  of  both  countries,  we  cheerfully  consent  to  the 

*  Abbreviations  for  nemine  contradicente ;  signifying,  no  one  opposing. 


38  ANALYSIS   OF  CIVIL   GOVERNMENT".       [Part  I. 

operation  of  such  acts  of  the  British  Parliament  as  are  hoiid  fide 
restrained  to  the  regulation  of  our  external  commerce,  for  the  pur- 
pose of  securing  the  commercial  advantages  of  the  whole  empire  to 
the  mother  country,  and  the  commercial  benefits  of  its  respective 
members  ;  excluding  every  idea  of  taxation,  internal  or  external, 
for  raising  a  revenue  on  the  subjects  in  America  without  their  con- 
sent. 

Resolved^  N.  C.  D.,  5.  That  the  respective  Colonies  are  entitled 
to  the  common  law  of  England,  and  more  especially  to  the  great 
and  inestimable  privilege  of  being  tried  by  their  peers  of  the  vicin- 
age according  to  the  course  of  that  law. 

Resolved,  6.  That  they  are  entitled  to  the  benefit  of  such  of  the 
Eno-lish  statutes  as  existed  at  the  time  of  their  colonization,  and 
which  they  have,  by  experience,  respectively  found  to  bo  applicable 
to  their  several  local  and  other  circumstances. 

Resolved,  N.  C.  D.,  7.  That  these,  his  Majesty's  Colonies,  are 
likewise  entitled  to  all  the  immunities  and  privileges  granted  and 
confirmed  to  them  by  royal  charters,  or  secured  by  their  several 
codes  of  Provincial  laws. 

Resolved,  N.  C.  D.,  8.  That  they  have  a  right  peaceably  to 
assemble,  consider  of  their  grievances,  and  petition  the  king ;  and 
that  all  prosecutions,  prohibitory  proclamations,  and  commitments 
for  the  same,  are  illegal. 

Resolved,  N.  C.  D.,  9.  That  the  keeping  a  standing  army  in 
these  Colonies  in  times  of  peace,  without  the  consent  of  the  legisla- 
ture of  that  Colony  in  which  such  army  is  kept,  is  against  law. 

Resolved,  N.  C.  D.,  10.  It  is  indispensably  necessary  to  good 
government,  and  rendered  essential  by  the  English  Constitution, 
that  the  constituent  branches  of  the  legislature  be  independent  of 
each  other  ;  that,  therefore,  the  exercise  of  legislative  power  in  sev- 
eral Colonies  by  a  council,  appointed  during  pleasure  by  the  Crown, 
is  unconstitutional,  dangerous,  and  destructive  to  the  freedom  of 
American  legislation. 

All  and  each  of  which  the  aforesaid  deputies,  in  behalf  of  them- 
selves and  their  constituents,  do  claim,  demand,  and  insist  on,  as 
their  indubitable  rights  and  liberties,  which  can  not  be  legally  taken 


Part  I.]  DECLARATION  OF  RIGHTS.  39 

from  them,  altered,  or  abridged,  by  any  power  whatever,  without  their 
own  consent,  by  their  representatives  in  their  several  Provincial 
legislatures. 

In  the  course  of  our  inquiry,  we  find  many  infiingements  and 
violations  of  the  foregoing  rights ;  which,  from  an  ardent  desu-e  that 
harmony  and  mutual  intercourse  of  affection  and  interest  may  be 
restored,  we  pass  over  for  the  present,  and  proceed  to  state  such  acts 
and  measures  as  have  been  adopted  since  the  last  war,  which  demon- 
strate a  system  formed  to  enslave  America. 

Resolved,  N.  C.  D.,  That  the  following  acts  of  Parliament  are 
infringements  and  violations  of  the  rights  of  the  colonists ;  and  that 
the  repeal  of  them  is  essentially  necessary,  in  order  to  restore  har- 
mony between  Great  Britain  and  the  American  Colonies ;  viz.  :  — 

The  several  acts  of  4  Geo.  III.  ch.  15  and  ch.  34,  5  Geo.  III. 
ch.  25,  6  Geo.  III.  ch.  52,  7  Geo.  III.  ch.  41  and  ch.  46,  8  Geo. 
III.  ch.  22,  which  impose  duties  for  the  purpose  of  raising  a  revenue 
in  America,  extend  the  power  of  the  admiralty  courts  beyond  their 
ancient  limits,  deprive  the  American  subject  of  trial  by  jury,  author- 
ize the  judges'  certificate  to  indemnify  the  prosecutor  from  damages 
that  he  might  otherwise  be  liable  to,  requiring  oppressive  security 
from  a  claimant  of  ships  and  goods  seized  before  he  shall  be  allowed 
to  defend  his  property,  and  are  subversive  of  American  rights. 

Also  12  Geo.  Ill,  ch.  24,  entitled  **  An  Act  for  the  Better  Secur- 
ing his  Majesty's  Dock- Yards,  Magazines,  Ships,  Ammunition,  and 
Stores,"  which  declares  a  new  offense  in  America,  and  deprives  the 
American  subject  of  a  constitutional  trial  by  jury  of  the  vicinage, 
by  authorizing  the  trial  of  any  person  charged  with  the  committing 
any  offense  described  in  the  said  act,  out  of  the  realm,  to  be  indicted 
and  tried  for  the  same  in  any  shire  or  county  within  the  realm. 

Also  the  three  acts  passed  in  the  last  session  of  Parliament,  for 
stopping  the  port  and  blocking  up  the  harbor  of  Boston,  for  altering 
the  charter  and  government  of  Massachusetts  Bay,  and  that  which 
is  entitled  "  An  Act  for  the  Better  Administration  of  Justice,"  &c. 

Also  the  act  passed  in  tlie  same  session  for  establishing  the  Boman- 
Catholic  religion  in  the  Province  of  Quebec ;  abolishing  the  equitable 
system  of  English  laws,  and  erecting  a  tyranny  there,  to  the  great 


40  ANALYSIS   OF   CIVIL  GOVEBNMENT.       [Part  I. 

danger  (from  so  total  a  dissimilarity  of  religion,  law,  and  govern- 
ment) of  the  neighboring  British  Colonies,  by  the  assistance  of 
whose  blood  and  treasure  the  said  country  was  conquered  from 
France. 

Also  the  act  passed  in  the  same  session,  for  the  better  providing 
suitable  quarters  for  officers  and  soldiers  in  his  Majesty's  service 
in  North  America. 

Also  that  the  keeping  a  standing  army  in  several  of  these  Colo- 
nies in  time  of  peace,  without  the  consent  of  the  Legislature  of  that 
Colony  in  which  such  army  is  kept,  is  against  law. 

To  these  grievous  acts  and  measures  Americans  can  not  submit ; 
but  in  hopes  their  fellow-subjects  in  Great  Britain  will,  on  a  revision 
of  them,  restore  us  to  that  state  in  which  both  countries  found  hap- 
piness and  prosperity,  we  have,  for  the  present,  only  resolved  to 
pursue  the  following  peaceable  measures:  1.  To  enter  into  a  non- 
importation, non-consumption,  and  non-exportation  agreement  or 
association  ;  2.  To  prepare  an  address  to  the  people  of  Great 
Britain,  and  a  memorial  to  the  inhabitants  of  British  America ;  and, 
3.  To  prepare  a  loyal  address  to  his  Majesty,  agreeable  to  resolu- 
tions already  entered  into. 


II. 

THE    DECLARATION    OF    INDEPENDENCE, 
ADOPTED   BY  CONGRESS  JULY  4,  1776. 


A  Declaration  by  the  Representatives  of  the  United  States 
OF  America,  in  Congress  As^mbled. 

When,  in  the  course  of  human  events,  it  becomes  necessary  for 
one  people  to  dissolve  the  political  bands  which  have  connected  them 
with  another,  and  to  assume  among  the  powers  of  the  earth  the 
separate  and  equal  station  to  which  the  laws  of  nature  and  of 
nature's  God  entitle  them,  a  decent  respect  to  the  opinions  of  man- 
kind requires  tliat  they  should  declare  the  causes  which  impel  them 
to  the  separation. 


Part  I.]       DECLARATlOisr   OF  INDEPENDENCE.  41 


i^ 


^e  hold  these  truths  to  be  self-evident,  that  all  men  are  created 
equal ;  that  they  arc  endowed  by  their  Creator  with  certain  unalien- 
able rights ;  that  among  these  are  life,  liberty,  and  the  pursuit  of 
happiness ;  that,  to  secure  these  rights,  governments  are  instituted 
among  men,  deriving  their  just  powers  from  the  consent  of  the  gov- 
erned ;  that,  whenever  any  form  of  government  becomes  destructive 
of  these  ends,  it  is  the  right  of  the  people  to  alter  or  to  abolish  it,  and 
to  institute  a  new  government,  laying  its  foundation  on  such  princi- 
ples, and  organizing  its  powers  in  such  form,  as  to  them  shall  seem 
most  likely  to  eflfect  their  safety  and  happiness.X  Pnidence,  indeed, 
will  dictate  that  governments  should  not  be  cllanged  for  light  and 
transient  causes ;  and,  accordingly,  all  experience  hath  shown  that 
mankind  are  more  disposed  to  suffer,  while  evils  are  sufferable,  than 
to  right  themselves  by  abolishing  the  forms  to  which  they  are  accus- 
tomed. But  when  a  long  train  of  abuses  and  usurpations,  pursuing 
invariably  the  same  object,  evinces  a  design  to  reduce  them 
under  absolute  despotism,  it  is  their  right,  it  is  their  duty,  to  throw 
off  such  government,  and  to  provide  new  guards  for  their  future 
security.  Such  has  been  the  patient  sufferance  of  these  Colonies, 
and  such  is  now  the  necessity  which  constrains  them  to  alter  their 
former  systems  of  government.  The  history  of  the  present  king 
of  Great  Britain  is  a  history  of  rcpoated  injuries  and  usurpations, 
all  having  in  direct  object  the  establishment  of  an  absolute  tyranny 
over  these  States.  To  prove  this,  let  facts  be  submitted  to  a  candid 
world :  — 

He  has  refused  his  assent  to  laws  the  most  wholesome  and  neces- 
sary for  the  public  good. 

He  has  forbidden  his  governors  to  pass  laws  of  immediate  and 
pressing  importance,  unless  suspended  in  their  operation  till  his 
assent  should  be  obtained ;  and,  when  so  suspended,  he  has  utterly 
neglected  to  attend  to  them. 

He  has  refused  to  pass  other  laws  for  the  accommodation  of  large 
districts  of  people,  unless  those  people  would  relinquish  the  right 
of  representation  in  the  Legislature;  a  right  inestimable  to  them, 
and  formidable  to  tyrants  only. 

He  has  called  together  legislative  bodies  at  places  unusual,  uncom- 


42  ANALYSIS    OF   CIVIL  GOVERNMENT.       [Part  I. 

fortable,  and  distant  from  the  depository  of  their  public  records,  for 
the  sole  purpose  of  fatiguing  them  into  compliance  with  his 
measures. 

He  has  dissolved  representative  houses  repeatedly,  for  opposing, 
with  manly  firmness,  his  invasions  on  the  rights  of  the  people. 

He  has  refused,  for  a  long  time  after  such  dissolutions,  to  cause 
others  to  be  elected ;  whereby  the  legislative  powers,  incapable  of 
annihilation,  have  returned  to  the  people  at  large  for  their  exercise ; 
the  State  remaining,  in  the  mean  time,  exposed  to  all  the  danger  of 
invasion  from  without,  and  convulsions  within. 

He  has  endeavored  to  prevent  the  population  of  these  States ;  for 
that  purpose,  obstructing  the  laws  for  naturalization  of  foreign- 
ers ;  refusing  to  pass  others  to  encourage  their  migration  hither,  and 
raising  the  conditions  of  new  appropriations  of  lands. 

He  has  obstructed  the  administration  of  justice  by  refusing  his 
assent  to  laws  for  establishing  judiciary  powers. 

He  has  made  judges  dependent  on  his  will  alone  for  the  tenure 
of  their  offices,  and  the  amount  and  payment  of  their  salaries. 

He  has  erected  a  multitude  of  new  offices,  and  sent  hither  swarms 
of  officers  to  harass  our  people,  and  eat  oat  their  substance. 

He  has  kept  among  us,  in  times  of  peace,  standing  armies,  with- 
out the  consent  of  our  Legislature. 

He  has  affected  to  render  the  military  independent  of,  and 
superior  to,  the  civil  power. 

He  has  combined,  with  others,  to  subject  us  to  a  jurisdiction 
foreign  to  our  Constitution,  and  unacknowledged  by  our  laws ;  giv- 
ing his  assent  to  their  acts  of  pretended  legislation, — 

For  quartering  large  bodies  of  armed  troops  among  us ; 

For  protecting  them,  by  a  mock  trial,  from  punishment  for  any 
murders  which  they  should  commit  on  the  inhabitants  of  these 
States ; 

For  cutting  off  our  trade  with  all  parts  of  the  world ; 

For  imposing  taxes  on  us  without  our  consent  ; 

For  depriving  us,  in  many  cases,  of  the  benefits  of  trial  by  jury ; 

For  transporting  us  beyond  seas  to  be  tried  for  pretended  of- 
fenses ; 


Part  I.]       DECLARATION   OF  INDEPENDENCE.  43 

For  abolislimg  the  free  system  of  English  laws  in  a  neighboring 
Province,  establishing  therein  an  arbitrary  government,  and  enlar- 
ging its  boundai'ies,  so  as  to  render  it  at  once  an  example  and  iit 
instrument  for  introducing  the  same  absolute  rule  into  these 
Colonies ; 

For  taking  away  our  charters,  abolishmg  our  most  valuable  laws, 
and  altering  fundamentally  the  powers  of  our  governments ; 

For  suspending  our  own  legislatures,  and  declaring  themselves 
invested  with  power  to  legislate  for  us  in  all  cases  whatsoever ; 

He  has  abdicated  government  here,  by  declaring  us  out  of  his 
protection,  and  waging  war  against  us. 

He  has  plundered  our  seas,  ravaged  our  coasts,  burnt  our  towns, 
and  destroyed  the  lives  of  our  people. 

He  is,  at  this  time,  transporting  large  armies  of  foreign  merce- 
naries to  complete  the  works  of  death,  desolation,  and  tyranny, 
already  begun  with  circumstances  of  cruelty  and  perfidy  scarcely 
paralleled  in  the  most  baibarous  ages,  and  totally  unworthy  the 
head  of  a  civilized  nation. 

He  has  constrained  our  fellow  citizens  taken  captive  on  the  high 
seas  to  bear  anus  against  their  country,  to  become  the  execution- 
ers of  their  friends  and  brethren,  or  to  fall  themselves  by  their 
hands. 

He  has  excited  domestic  insurrections  amongst  us,  and  has 
endeavored  to  bring  on  the  inhabitants  of  our  frontiers  the  merci- 
less Indian  savages,  whose  known  rule  of  warfare  is  an  undistin- 
guished destruction  of  all  ages,  sexes,  and  conditions. 

In  every  stage  of  these  oppressions,  we  have  petitioned  for 
redress  in  the  most  humble  terms  :  our  repeated  petitions  have 
been  answered  only  by  repeated  injury.  A  prince  whose  charac- 
ter is  thus  marked  by  every  act  which  may  define  a  tyrant  is  imfit 
to  be  the  ruler  of  a  free  people. 

Nor  have  we  been  wanting;  in  attention  to  our  British  brethren. 

We  have  warned  them,  from  time  to  time,  of  attempts  made  by 
their  legislature  to  extend  an  unwarrantable  jurisdiction  over  us. 
We  have  reminded  them  of  the  circumstances  of  our  emigi-ation 
and  settlement  here.     We  have  appealed  to  their  native  justice  and 


44  ANALYSIS   OF  CIVIL  GOVERNMENT.       [Part  L 

magnanimity;  and  we  have  conjured  them,  by  the  ties  of  our 
common  kindred,  to  disavow  these  usurpations,  which  would 
inevitably  interrupt  our  connections  and  correspondence.  They, 
too,  have  been  deaf  to  the  voice  of  justice  and  consanguinity.  We 
must,  therefore,  acquiesce  in  the  necessity  which  denounces  our 
separation,  and  hold  them,  as  we  hold  the  rest  of  mankind,  enemies 
in  war;  in  peace,  friends. 

We,  therefore,  the  representatives  of  the  United  States  of 
America,  in  General  Congress  assembled,  appealing  to  the 
Supreme  Judge  of  the  world  for  the  rectitude  of  our  intentions, 
do,  in  the  name  and  by  the  authority  of  the  good  people  of  these 
Colonies,  solemnly  publish  and  declare,  that  these  United  Colonies 
are,  and  of  right  ought  to  be,  free  and  independent  States;  that 
they  are  absolved  from  all  allegiance  to  the  British  Crown  ^  and  that 
all  political  connection  between  them  and  the  state  of  Great  Britain 
is,  and  ought  to  be,  totally  dissolved;  and  that,  as  free  and  inde- 
pendent States,  they  have  full  power  to  levy  war,  conclude  peace, 
contract  alliances,  establish  commerce,  and  to  do  all  other  acts  and 
things  which  independent  States  may  of  right  do.  And  for  the 
support  of  this  declaration,  with  a  firm  reliance  on  the  protection  of 
Divine  Providence,  we  mutually  pledge  to  each  other  our  lives, 
our  fortunes,  and  our  sacred  honor. 

The  signers  to  this  Declaration  were 

JOHN   HANCOCK,  President. 

NEW  HAMPSHIRE.  SAMUEL  HUXTINGTON, 

JOSIAH  BARTLETT,  WILLIAM  WILLIAMS, 

WILLIAM  WHIPPLE,  -  OLIVER  WOLCOTT. 

MATTHEW  THORNTON. 

NEW  YORK. 
MASSACHUSETTS  BAT. 

WILLIAM  FLOYD, 
SAMUEL  ADAMS,  PHILIP   LIVINGSTON, 

JOHN  ADAMS,  FRANCIS  LEWIS, 

ROBERT  TREAT  PAINE,  ^-^^^^  MORRIS. 

ELBRIDGE   GERRY. 


RHODE  ISLAND.  NEW  JERSEY. 

STEPHEN  HOPKINS,  RICHARD  STOCKTON, 

WILLIAM  ELLERY.  JOHN  WITILERSPOON, 

FRANCIS  HOPKINSON, 
CONNECTICUT.  joHN  HART, 

ROGER  SHERM/iN,  ABRAHAM  CLARK. 


Pakt  I.]  ARTICLES   OF   CONFEDEEATION. 


45 


PENNS  YL  VANIA . 

ROBERT  MORRIS, 
BENJAMIN  RUSH, 
BENJAMIN   FRANKLIN, 
JOHN  MORTON, 
GEORGE  CLYMER, 
JAMES  SMITH, 
GEORGE  TAYLOR, 
JAMES  WILSON, 
GEORGE  ROSS. 

DELA  WARE. 

C^SAR  RODNEY, 
GEORGE  REED, 
THOMAS  McKEAN. 

maryland. 

samlt:l  chase, 
william  pag  a, 
thomas  stone, 

CHARLES  CARROLL,  of  CarroUton. 


VIRGINIA. 
GEORGE  WYTHE, 
RICHARD   HENRY  LEE, 
THOMAS  JEFFERSON, 
BENJAMIN  ILiRRISON, 
THOMAS  NELSON,  Jr., 
FRANCIS    LIGHTFOOT  LEE, 
CARTER  BRAXTON. 

NORTH  CAROLINA. 
WILLIAM  HOOPER, 
JOSEPH    HEWES, 
JOHN  PENN. 

SOUTH  CAROLINA 
EDWARD   RUTLEDGE, 
THOMAS  HAYWARD,  Jr., 
THOMAS   LYNCH,  Jr., 
ARTHUR  MIDDLETON. 

GEORGIA. 
BUTTON  GWINNETT, 
LYMAN  HALL, 
GEORGE  WALTON. 


III. 


We  bave  already  spoken  of  the  adoption  of  the  Articles  of  Con- 
federation.    They  are,  at  length,  as  follows  :  — 

ARTICLES  OF  CONFEDERATION  AND  PERPETUAL  UNION 
BETWEEN  THE  STATES. 

To  all  to  whom  these  presents  shall  come,  we,  the  undersigned 
Delegates  of  the  States  affixed  to  our  names,  send  greeting: 
Whereas  the  Delegates  of  the  United  States  of  America,  in  Con- 
gress assembled,  did,  on  the  fifteenth  day  of  November,  in  the  year 
of  our  Lord  1777,  and  in  the  Second  Year  of  the  Independence  of 
America,  agree  to  certain  Articles  of  Confederation  and  perpetual 
Union  between  the  States  of  New  Hampshire,  Massachusetts  Bay, 
Rhode-Island  and  Providence  Plantations,  Connecticut,  New  York, 
New  Jersey,  Pennsylvania,  Delaware,  Maryland,  Virginia,  North 
Carolina,  South  Carolina,  and  Greorgia,  in  the  words  following,  viz. :  — 


M  ANALYSIS   OF   CIVIL  GOVERNMENT.       [Pakt  I. 

Articles  of  Confederation  and  Perpetual  Union  between  the  States 
of  New  Hampshire,  Massachusetts  Bay,  Rhode-Island  and 
Providence  Plantations,  Connecticut,  New  York,  New  Jersey, 
Pennsylvania,  Delaware,  Maryland,  Virginia,  North  Caro- 
lina, South   Caroliiia,  and  Georgia. 

Article  I.  The  style  of  this  Confederacy  shall  be,  *'  The  United 
States  of  America." 

Art.  II.  Each  State  retains  its  sovereignty,  freedom,  and  inde- 
pendence, and  every  power,  jurisdiction,  and  right  which  is  not  by 
this  Confederation  expressly  delegated  to  the  United  States  in  Con- 
gress assembled. 

Art.  III.  The  said  States  hereby  severally  enter  into  a  firm 
league  of  friendship  with  each  other,  for  their  common  defense,  the 
security  of  their  liberties,  and  their  mutual  and  general  welfare, 
binding  themselves  to  assist  each  other  against  all  force  ofiered  to 
or  attacks  made  upon  them,  or  any  of  them,  on  account  of' religion, 
sovereignty,  trade,  or  any  other  pretense  whatever. 

Art.  IV.  The  better  to  secure  and  perpetuate  mutual  friendship 
and  intercourse  among  the  people  of  the  different  States  in  this 
Union,  the  free  inhabitants  of  each  of  these  States  —  paupers,  vaga- 
bonds, and  fugitives  from  justice,  excepted  —  shall  be  entitled  to  all 
privileges  arid  immunities  of  free  citizens  in  the  several  States ;  and 
the  people  of  each  State  shall  have  free  ingress  and  regress  to  and 
from  any  other  State,  and  shall  enjoy  therein  all  the  privileges  of 
trade  and  commerce,  subject  to  the  same  duties,  impositions,  and 
restrictions  as  the  inhabitants  thereof  respectively  ;  provided  that 
such  restriction  shall  not  extend  so  far  as  to  prevent  the  removal  of 
property,  imported  into  any  State,  to  any  other  State  of  which  the 
owner  is  an  inhabitant;  provided  also  that  no  imposition,  duties,  or 
restriction  shall  be  laid  by  any  State  on  the  property  of  the  United 
States,  or  either  of  them. 

If  any  person  guilty  of  or  charged  with  treason,  felony,  or  other 
high  misdemeanor,  in  any  State,  shall  flee  from  justice,  and  be  found 
in  any  of  the  United  States,  he  shall,  upon  demand  of  the  governor 
or  executive  power  of  the  State  from  which  he  fled,  be  delivered  up 
and  removed  to  the  State  having  jurisdiction  of  his  offense. 


Pakt  I.]  ARTICLES    OF   CONFEDERATION.  47 

Full  faith  and  credit  shall  be  given  in  each  of  these  States  to  the 
records,  acts,  and  judicial  proceedings  of  the  courts  and  magistrates 
of  every  other  State. 

Art.  V.  For  the  more  convenient  management  of  the  general 
interest  of  the  United  States,  delegates  shall  be  annually  appointed 
in  such  manner  as  the  legislature  of  each  State  shall  direct,  to  meet 
in  Congress  on  the  first  Monday  in  November  in  every  year,  with  a 
power  reserved  to  each  State  to  recall  its  delegates,  or  any  of  them, 
at  any  time  within  the  year,  and  to  send  others  in  their  stead  for  the 
remainder  of  the  year. 

No  State  shall  be  represented  in  Congress  by  less  than  two  nor 
by  more  than  seven  members ;  and  no  person  shall  be  capable  of 
being  a  delegate  for  more  than  three  years  in  any  term  of  six  years ; 
nor  shall  any  person,  being  a  delegate,  be  capable  of  holding  any 
office  under  the  United  States,  for  which  he,  or  another  for  his  bene- 
fit, receives  any  salary,  fees,  or  emolument  of  any  kind. 

Each  State  shall  maintain  its  own  delegates  in  any  meeting  of  the 
States,  and  while  they  act  as  members  of  the  committee  of  the 
States. 

In  determining  questions  in  the  United  States  in  Congress  assem- 
bled, each  State  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  Congress  shall  not  be  im- 
peached or  questioned  in  any  court,  or  place  out  of  Congress ;  and 
the  members  of  Congress  shall  be  protected  in  their  persons  from 
arrests  and  imprisonments  during  the  time  of  their  going  to  and 
from,  and  attendance  on,  Congress,  except  for  treason,  felony,  or 
breach  of  the  peace. 

Art.  VI.  No  State,  without  the  consent  of  the  United  States  in 
Congress  assembled,  shall  send  any  embassy  to,  or  receive  any  em- 
bassy from,,  or  enter  into  any  conference,  agreement,  alliance,  or 
treaty  with,  any  king,  prince,  or  state  ;  nor  shall  any  person  holding 
any  office  of  profit  or  trust  under  the  United  States,  or  any  of  them, 
accept  of  any  present,  emolument,  office,  or  title,  of  any  kind  what- 
ever, from  any  king,  prince,  or  foreign  state  ;  nor  shall  the  United 
States  in  Congress  assembled,  or  any  of  them,  grant  any  title  of  no- 
bility. 


48  ANALYSIS   OF   CIVIL  GOVEENMEKT.       [Part  I. 

No  two  or  more  States  shall  enter  into  any  treaty,  confederation, 
or  alliance  whatever  between  them,  without  the  consent  of  the  United 
States  in  Congress  assembled ;  specifying  accurately  the  purposes  for 
which  the  same  is  to  be  entered  into,  and  how  long  it  shall  continue. 

No  State  shall  lay  any  imposts  or  duties  which  may  interfere  with 
any  stipulations  in  treaties  entered  into,  by  the  United  States  in 
Congress  assembled,  with  any  king,  prince,  or  state,  in  pursuance 
of  any  treaties  already  proposed  by  Congress  to  the  courts  of 
France  and  Spain. 

•  No  vessels-of-war  shall  be  kept  up  in  time  of  peace  by  any  State, 
except  such  number  only  as  shall  be  deemed  necessary,  by  the  Unit- 
ed States  in  Congress  assembled,  for  the  defense  of  such  State  or 
its  trade ;  nor  shall  any  body  of  forces  be  kept  up  by  any  State  in 
time  of  peace,  except  such  number  only  aS;  in  the  judgment  of  the 
United  States  in  Congress  assembled,  shall  be  deemed  requisite  to 
garrison  the  forts  necessary  for  the  defense  of  such  State ;  but  every 
State  shall  always  keep  up  a  well-regulated  and  disciplined  militia, 
sufficiently  armed  and  accoutered,  and  shall  provide  and  have  con- 
stantly ready  for  use  in  public  stores  a  due  number  of  field-pieces  and 
tents,  and  a  proper  quantity  of  arms,  ammunition,  and  camp  equi- 
page. 

No  State  shall  engage  in  any  war  without  the  consent  of  the  Unit- 
ed States  in  Congress  assembled,  unless  such  State  be  actually  in- 
vaded by  enemies,  or  shall  have  received  certain  advice  of  a  resolu- 
tion being  formed  by  some  nation  of  Indians  to  invade  such  State, 
and  the  danger  is  so  imminent  as  not  to  admit  of  a  delay  till  the 
United  Spates  in  Congress  assembled  can  be  consulted  ;  nor  shall 
any  State  grant  commissions  to  any  ships  or  vessels  of  war,  nor  let- 
ters of  marque  or  reprisal,  except  it  be  after  a  declaration  of  war  by 
the  United  States  in  Congress  assembled,  and  then  only  against  the 
kingdom  or  state,  and  the  subjects  thereof,  against  which  war  has 
been  so  declared,  and  under  such  regulations  as  shall  be  established 
by  the  United  States  in  Congress  assembled,  unless  such  State  be 
infested  by  pirates ;  in  which  case  vessels-of-war  may  be  fitted  out  for 
that  occasion,  and  kept  so  long  as  the  danger  shall  continue,  or  until 
the  United  States  in  Congress  assembled  shall  determine  otherwise. 


Past  I.]  ARTICLES  OF   COKFEDERATION.  .   49 

Art.  YII.  When  land-forces  are  raised  by  any  State  for  tbe 
common  defense,  all  officers  of  or  under  the  rank  of  colonel  shall 
be  appointed  by  the  Legislature  of  each  State  respectively  by  whom 
such  forces  shall  bo  raised,  or  in  such  manner  as  such  State  shall 
direct ;  and  all  vacancies  shall  be  filled  up  by  the  State  which  first 
made  the  appointment. 

Art.  VIII.  All  charges  of  war,  and  all  other  expenses  that  shall 
be  incurred  for  the  common  defense  or  general  welfare,  and  allowed 
by  the  United  States  in  Congress  assembled,  shall  be  defrayed  out 
of  a  common  treasury,  which  shall  be  supplied  by  the  several  States 
in  proportion  to  the  value  of  all  land  within  each  State,  granted  to 
or  surveyed  for  any  person,  as  such  land  and  the  buildings  and  im- 
provements thereon  shall  be  estimated,  according  to  such  mode  as 
the  United  States  in  Congress  assembled  shall  from  time  to  time 
direct  and  appoint.  The;  taxes  for  paying  that  proportion  shall  be 
laid  and  levied  by  the  authority  and  direction  of  the  Legislatures  of 
the  several  States  within  the  time  agreed  upon  by  the  United  States 
in  Congress  assembled. 

Art.  IX.  The  United  States  in  Congress  assembled  shall  have 
the  sole  and  exclusive  right  and  power  of  determining  on  peace  and 
war,  except  in  cases  mentioned  in  the  Sixth  Article  ;  of  sending 
and  receiving  ambassadors,  entering  into  treaties  and  alliances, 
provided  that  no  treaty  of  commerce  shall  be  made  whereby  the 
legislative  power  of  the  respective  States  shall  be  restrained  from 
imposing  such  imposts  and  duties  on  foreigners  as  their  own  people 
are  subjected  to,  or  from  prohibiting  the  exportation  or  importation 
of  any  species  of  goods  or  commodities  whatsoever ;  of  establishing 
rules  for  deciding  in  all  cases  what  captures  on  land  or  water  shall 
be  legal,  and  in  what  manner  prizes  taken  by  land  or  naval  forces 
in  the  service  of  the  United  States  shall  be  divided  or  appropriated ; 
of  granting  letters  of  marque  and  reprisal  in  times  of  peace,  ap- 
pointing courts  for  the  trial  of  piracies  and  felonies  committed  on  the 
high  seas,  and  establishing  courts  for  receiving  and  determining 
finally  appeals  in  all  cases  of  captures,  provided  that  no  member  of 
Congress  shall  be  appointed  a  judge  of  any  of  the  said  courts. 

The  United  States  in  Congrees  assembled  shall  tlso  be  the  last 


50  ANALYSIS   OF   CIVIL  GOVERNMENT.       [Paet  I. 

resort  on  appeal  in  all  disputes  and  differences  now  subsisting  or 
that  hereafter  may  arise  between  two  or  more  States  concerning 
boundary,  jurisdiction,  or  any  other  cause  whatever ;  which  authority 
shall  always  be  exercised  in  the  manner  following :  Whenever  the 
legislative  or  executive  authority  or  lawful  agent  of  any  State,  in 
controversy  with  another,  shall  present  a  petition  to  Congress,  stating 
the  matter  in  question,  and  praying  for  a  hearing,  notice  thereof  shall 
be  given  by  order  of  Congress  to  the  legislative  or  executive  au- 
thority of  the  other  State  in  controversy,  and  a  day  assigned  for  the 
appearance  of  the  parties  by  their  lawful  agents,  who  shall  then  be 
directed  to  appoint,  by  joint  consent,  commissioners  or  judges  to  con- 
stitute a  court  for  hearing  and  determining  the  matter  in  question : 
but,  if  they  can  not  agree.  Congress  shall  name  three  persons  out  of 
each  of  the  United  States ;  and  from  the  list  of  such  persons  each 
party  shall  alternately  strike  out  one,  the  petitioners  beginning,  until 
the  number  shall  be  reduced  to  thirteen  ;  and  from  that  number  not 
less  than  seven  nor  more  than  nine  names,  as  Congress  shall  direct, 
shall  in  the  presence  of  Congress  be  drawn  out  by  lot ;  and  the  per- 
sons whose  names  shall  be  so  drawn,  or  any  five  of  them,  shall  bo 
commissioners  or  judges  to  hear  and  finally  determine  the  contro- 
versy, so  always  as  a  major  part  of  the  judges  who  shall  hear  the 
cause  shall  agree  in  the  determination ;  and  if  either  party  shall 
neglect  to  attend  at  the  day  appointed,  without  showing  reasons 
wliich  Congress  shall  judge  sufficient,  or,  being  present,  shall  refuse  to 
strike,  the  Congress  shall  proceed  to  nominate  three  persons  out  of 
each  State,  and  the  Secretary  of  Congress  shall  strike  in  behalf 
of  such  party  absent  or  refusing ;  and  the  judgment  and  sentence 
of  the  court,  to  be  appointed  in  the  manner  before  prescribed,  shall 
be  final  and  conclusive ;  and,  if  any  of  the  parties  shall  refuse  to 
submit  to  the  authority  of  such  court,  or  to  appear  or  defend  their 
claim  or  cause,  the  court  shall  nevertheless  proceed  to  pronounce 
sentence  or  judgment,  which  shall  in  like  manner  be  final  and  deci- 
sive, —  the  judgment  or  sentence  and  other  proceedings  being  in 
either  case  transmitted  to  Congress,  and  lodged  among  the  acts  of 
Congress  for  the  security  of  the  parties  concerned :  provided  that 
every  commissioner,  before  he  sits  in  judgment,  shall  take  an  oath. 


Part  I.]  ARTICLES   OF   CONFEDERATION.  61 

to  be  administered  by  one  of  the  judges  of  the  Supreme  or  Superior 
Court  of  the  State  where  the  cause  shall  be  tried,  "  well  and  truly 
to  hear  and  determine  the  matter  in  question,  according  to  the  best 
of  his  judgment,  without  favor,  affection,  or  hope  of  reward;  "  pro- 
vided also  that  no  State  shall  be  deprived  of  territory  for  the  benefit 
of  the  United  States. 

All  controversies  concerning  the  private  right  of  soil  claimed 
under  different  grants  of  two  or  more  States,  whose  jurisdictions  as 
they  may  respect  such  lands,  and  the  States  which  passed  such 
grants,  are  adjusted,  the  said  gi'ants  or  either  of  them  being  at  the 
same  time  claimed  to  have  originated  antecedent  to  such  settle- 
ment of  jurisdiction,  shall,  on  the  petition  of  either  party  to  the 
Congress  of  the  United  States,  be  finally  determined,  as  near  as 
may  be,  in  the  same  manner  as  is  before  prescribed  for  deciding 
disputes  respecting  territorial  jurisdiction  between  different  States. 

The  United  States  in  Congress  assembled  shall  also  have  the 
sole  and  exclusive  right  and  power  of  regulating  the  alloy  and 
value  of  coin  struck  by  their  own  authority,  or  by  that  of  the 
respective  States  ;  fixing  the  standard  of  weights  and  measures 
throughout  the  United  States  ;  regulating  the  trade  and  managing 
all  affairs  with  the  Indians,  not  members  of  any  of  the  States, 
provided  that  the  legislative  right  of  any  State  within  its  own. 
limits  be  not  infringed  or  violated ;  establishing  or  regulating 
post-offices  from  one  State  to  another  throughout  all  the  United 
States,  and  exacting  such  postage  on  the  papers  passing  through  the 
same  as  may  be  requisite  to  defray  the  expenses  of  the  said 
office;  appointing  all  officers  of  the  land-forces  in  the  service 
of  the  United  States,  excepting  regimental  officers ;  appointing 
all  the  officers  of  the  naval  forces,  and  commissioning  all  officers 
whatever  in  the  service  of  the  United  States ;  making  rules  for 
the  government  and  regulation  of  the  said  land  and  naval  forces, 
and  directing  their  operations. 

The  United  States  in  Congi-ess  assembled  shall  have  authority  to 
appoint  a  committee,  to  sit  in  the  recess  of  Congress,  to  be  denom- 
inated "  A  Committee  of  the  States,"  and  to  consist  of  one  delegate 
from  each  State ;  and  to  appoint  such  other  committees  and  civil 


52  ANALYSIS  OF   CIVIL  GOVERNMENT.       [Part  I. 

oflBcers  as  may  be  necessary  for  managing  the  general  affairs  of  the 
United  States  under  their  direction ;  to  appoint  one  of  their  num- 
ber to  preside,  provided  that  no  person  be  allowed  to  serve  in  the 
office  of  president  more  than  one  year  in  any  term  of  three  years ; 
to  ascertain  the  necessary  sums  of  money  to  be  raised  for  the  ser- 
vice of  the  United  States,  and  to  appropriate  and  apply  the  same 
for  defraying  the  public  expenses ;  to  borrow  money,  or  emit  bills 
on  the  credit  of  the  United  States,  transmitting  every  half-year  to 
the  respective  States  an  account  of  the  sums  of  money  so  borrowed 
or  emitted  ;  to  build  and  equip  a  navy  j  to  agree  upon  the  num- 
ber of  land  forces,  and  to  make  requisitions  from  each  State  for  its 
quota,  in  proportion  to  the  number  of  white  inhabitants  in  such 
State ;  which  requisition  shall  be  binding ;  and  thereupon  the  Legis- 
lature of  each  State  shall  appoint  the  regunental  officers,  raise  the 
men,  and  clothe,  arm,  and  equip  them  in  a  soldier-like  manner,  at 
the  expense  of  the  United  States;  and  the  officers  and  men  so 
clothed,  armed,  and  equipped  shall  march  to  the  place  appointed 
and  within  the  time  agreed  on  by  the  United  States  in  Congress 
assembled :  but  if  the  United  States  in  Congress  assembled  shall, 
on  consideration  of  circumstances,  judge  proper  that  any  State  should 
not  raise  men,  or  should  raise  a  smaller  number  than  its  quota,  and 
that  any  other  State  should  raise  a  greater  number  of  men  than  the 
quota  thereof,  such  extra  number  shall  be  raised,  officered,  clothed, 
armed,  and  equipped  in  the  same  manner  as  the  quota  of  such  State, 
unless  the  Legislature  of  such  State  shall  judge  that  such  extra  num- 
ber cannot  be  safely  spared  out  of  the  same ;  in  which  case  they  shall 
raise,  officer,  clothe,  arm,  and  equip  as  many  of  such  extra  number  as 
they  judge  can  be  safely  spared;  and  the  officers  and  men  so 
clothed,  armed,  and  equipped  shall  march  to  the  place  appointed, 
and  within  the  time  agreed  on  by  the  United  States  in  Congress 
assembled. 

The  United  States  in  Congress  assembled  shall  never  engage  in 
a  war ;  nor  grant  letters  of  marque  and  reprisal  in  time  of  peace ; 
nor  enter  into  any  treaties  or  alliances ;  nor  coin  money,  nor  regulate 
the  value  thereof;  nor  ascertain  the  sums  and  expenses  necessary 
for  the  defense  and  welfare  of  the  United  States,  or  any  of  them ; 


Paet  I.]  ARTICLES   OF  CONFEDERATION.  53 

nor  emit  bills,  nor  borrow  money  on  the  credit  of  the  United 
States;  nor  appropriate  money;  nor  agree  upon  the  number  of 
vessels-of-war  to  be  built  or  purchased,  or  the  number  of  land  or 
sea  forces  to  be  raised ;  nor  appoint  a  commander-in-chief  of  the 
army  or  navy,  unless  nine  States  assent  to  the  same ;  nor  shall  a 
question  on  any  other  point,  except  for  adjourning  from  day  to  day, 
be  determined,  unless  by  the  votes  of  a  majority  of  the  United 
States  in  Congress  assembled. 

The  Congress  of  the  United  States  shall  have  power  to  adjourn 
to  any  time  within  the  year,  and  to  any  place  within  the  United 
States,  so  that  no  period  of  adjournment  be  for  a  longer  duration 
than  the  space  of  six  months  ;  and  shall  publish  the  journal  of  their 
proceedings  monthly,  except  such  parts  thereof,  relating  to  treaties, 
alliances,  or  military  operations,  as  in  their  judgment  require  se- 
crecy :  and  the  yeas  and  nays  of  the  delegates  of  each  State  on  any 
question  shall  be  entered  on  the  journal,  when  it  is  desired  by  any 
delegate ;  and  the  delegates  of  a  State,  or  any  of  them,  at  his  or 
their  request,  shall  be  furnished  with  a  transcript  of  the  said  jour- 
nal, except  such  parts  as  are  above  excepted,  to  lay  before  the  Legis- 
latures of  the  several  States. 

Art.  X.  The  Committee  of  the  States,  or  any  nine  of  them,  shall 
be  authorized  to  execute,  in  the  recess  of  Congress,  such  of  the 
powers  of  Congress  as  the  United  States  in  Congress  assembled,  by 
the  consent  of  nine  States,  shall  from  time  to  time  think  expedient 
to  vest  them  with ;  provided  that  no  power  be  delegated  to  the  said 
committee,  for  the  exercise  of  which,  by  the  Articles  of  Confedera- 
tion, the  voice  of  nine  States  in  the  Congress  of  the  United  States 
assembled  is  requisite. 

Art.  XI.  Canada,  acceding  to  this  Confederation,  and  joining 
in  the  measures  of  the  United  States,  shall  be  admitted  into,  and 
entitled  to  all  the  advantages  of,  this  Union ;  but  no  other  Colony 
shall  be  admitted  into  the  same,  unless  such  admission  be  agreed  to 
by  nine  States. 

Art.  XII.  All  bills  of  credit  emitted,  moneys  borrowed,  and 
debts  contracted,  by  or  under  the  authority  of  Congress  before  the 
assembling  of  the  United  States,  in  pursuance  of  the  present  Con« 


64  ANALYSIS  OF  CIVIL  GOVERNMENT.       [Part  I. 

federation,  shall  be  deemed  and  considered  as  a  charge  against  the 
United  States,  for  payment  and  satisfaction  whereof  the  said  United 
States  and  the  public  faith  are  hereby  solemnly  pledged. 

Art.  XIII.  Every  State  shall  abide  by  the  determinations  of  the 
United  States  in  Congress  assembled,  on  all  questions  which,  by  this 
Confederation,  are  submitted  to  them.  And  the  Articles  of  this  Con- 
federation shall  be  inviolably  observed  by  every  State,  and  the  Union 
shall  be  perpetual ;  nor  shall  any  alteration  at  any  time  hereafter 
be  made  in  any  of  them,  unless  such  alteration  be  agreed  to  in  a 
Congress  of  the  United  States,  and  be  afterwards  confirmed  by  the 
Legislatures  of  every  State. 

And  whereas  it  hath  pleased  the  great  Governor  of  the  world 
to  incline  the  hearts  of  the  Legislatures  we  respectively  represent 
in  Congress  to  approve  of,  and  to  authorize  us  to  ratify,  the  said 
Articles  of  Confederation  and  perpetual  Union,  KNOW  YE,  that  we, 
the  undersigned  delegates,  by  virtue  of  the  power  and  authority  to 
us  given  for  that  purpose,  do  by  these  presents,  in  the  name  and  in 
behalf  of  our  respective  constituents,  fully  and  entirely  ratify  and 
confirm  each  and  every  of  the  said  Articles  of  Confederation  and 
perpetual  Union,  and  all  and  singular  the  matters  and  things  therein 
contained.  And  we  do  further  solemnly  plight  and  engage  the 
faith  of  our  respective  constituents,  that  they  shall  abide  by  the 
determinations  of  the  United  States  in  Congress  assembled  on  all 
questions  which  by  the  said  Confederation  are  submitted  to  them  ; 
and  that  the  Articles  thereof  shall  be  inviolably  observed  by  the. 
States  we  respectively  represent,  and  that  the  Union  shall  be  per- 
petual. In  witness  whereof,  we  have  hereunto  set  our  hands  in 
Congress.  Done  at  Philadelphia,  in  the  State  of  Pennsylvania,  the 
ninth  day  of  July,  in  the  year  of  our  Lord  1778,  and  in  the  third 
year  of  the  Independence  of  America. 


Josiah  Bartlett,  JohnWentworth,  jun.  )  On  the  part  and  behalf  of  the 

Aug.  8, 1778,  )      State  of  New  Hampshire 

John  Hancock,  Francis  Dana, 

Samuel  Adams,  James  Lovell, 

Elbridge  Gerry,  Samuel  Holton, 


)  On 


the  part  and  behalf  of  the 
State  of  Massachusetts  Bay. 


On  the  part  and  behalf  of  the 

,      State  of  Rhode  Island 

Henry  Marchant,  )      Providence  Plantations. 


\  ^ 

William  Ellery,  j^j^  Collinfl.  [     State  "of  Rhode  Island  and 


Part  L] 


CONSTITUTION. 


65 


Roger  Sherman, 
Samuel  Huntington, 
Oliver  Wolcott, 
Jas  Duane, 
Fras  Lewis, 

Jn"  Wltherspoon, 

Rob'  Morris, 

Daniel  Roberdeaa, 

Jon»  Bayard  Smith, 

Tho.  M'Kean,  Feb.  12, 17Y9, 

Jolin  Dickinson,  May  6,  1779, 

John  Hanson, 

March  1,  1781, 
Richard  Henry  Lee, 
John  Banister, 
Thomas  Adams, 
John  Penn, 

July  21,  1778, 
Henry  Laurens, 
William  Henry  Drayton, 
Jno  Matthews, 
Jno  Walton, 

24th  July,  1778, 


Titus  Hosmer, 
Andrew  Adam, 

William  Duer, 
Qovr  Morris, 

Nathi  Scudder, 

William  Clingan, 
Joseph  Reed, 

22d  July,  1778, 
Nicholas  Van  Dyke. 

Daniel  Carroll, 
March  1,  1781, 
Jn"  Harvie, 
Francis  Lightfoot  Lee, 

Corns  Harnett, 
Jn<>  Williams, 
Richd  Hutson, 
Thos.  Heyward,  jun. 

Edw^  Telfair, 
Edw^  Langworthy, 


!0n  the  part  and  behalf  of  the 
State  of  Connecticut. 

IOn  the  part  and  behalf  of  the 
State  of  New  York. 
!On  the  part  and  behalf  of  the 
State  of  New  Jersey,  Nov. 
26,  1778. 

On  the  part  and  behalf  of  the 
State  of  Pennsylvania. 

!0n  the  part  and  behalf  of  the 
State  of  Delaware. 
/  On  the  part  and  behalf  of  the 
\     State  of  Maryland. 

!0n  the  part  and  behalf  of  the 
State  of  Virginia. 

)  On  the  part  and  behalf  of  the 
)      State  of  North  Carolina. 

!0n  the  part  and  behalf  of  the 
State  of  South  Carolina. 

iOn  the  part  and  behalf  of  the 
State  of  Georgia. 


IV, 


CONSTITUTION  OF  THE  UNITED  STATES  OF  AMERICA. 

Note.  —  A  large  figure  is  placed  on  the  left  margin  of  each  paragraph  of  the  fol- 
lowing copy  of  the  Constitution,  so  that  the  paragraphs  may  be  referred  to  by  nurn- 
bers.  This  will  be  found  a  convenience  in  studying  the  Analysis  of  the  Constitution, 
as  the  corresponding  figures  are  used  there. 


1 


We,  the  People  of  the  United  States,  in  order  to 
form  a  more  perfect  union,  establish  justice,  insure  do- 
mestic tranquillity,  provide  for  the  common  defense,  pro- 
mote the  general  welfare,  and  secure  the  blessings  of  lib- 
erty to  ourselves  and  our  posterity,  do  ordain  and  estab- 
lish this  Constitution  for  the  United  States  of  America. 

ARTICLE  I. 
SECTION  1. 

1.  AH  legislative  powers  herein  granted  shall  be 
vested  in  a  Congress  of  the  United  States,  which  shall 
consist  of  a  Senate  and  House  of  Representatives. 


56  ANALYSIS   OF   CIVIL   GOVERNMENT.       [Part  I. 

SECTION  2. 

1.  The  House  of  Kepresentatives   shall  be  composed 

3  of  members  chosen  every  second  year  by  the  people  of 
the  several  States,  and  the  electors  in  each  State  shaU 
have  the  qualifications  requisite  for  electors  of  the  most 
numerous  branch  of  the  State  Legislature. 

4  2.  No  person  shall  be  a  Representative  who  shall  not 
have  attained  to  the  age  of  twenty-five  years,  and  been 
seven  years  a  citizen  of  the  United  States,  and  who  shall 
not,  when  elected,  be  an  inhabitant  of  that  State  in  which 
he  shall  be  chosen. 

5  3.  Representatives  and  direct  taxes  shall  be  appor- 
tioned among  the  several  States  which  may  be  included 
within  this  Union,  according  to  their  respective  numbers, 
which  shall  be  determined  by  adding  to  the  whole  num- 
ber of  free  persons,  including  those  bound  to  service  for 
a  term  of  years,  and  excluding  Indians  not  taxed,  three- 
fifths  of  all  other  persons.  The  actual  enumeration  shall 
be  made  within  three  years  after  the  first  meeting  of  the 
Congress  of  the  United  States,  and  within  every  subse- 
quent term  of  ten  years,  in  such  manner  as  they  shall  by 
law  direct.  The  number  of  Representatives  shall  not  ex- 
ceed one  for  every  thirty  thousand,  but  each  State  shall 
have  at  least  one  Representative ;  and,  until  such  enumer- 
ation shall  be  made,  the  State  of  New  Hampshire  shall 
be  entitled  to  choose  three,  Massachusetts  eight,  Rhode- 
Island  and  Providence  Plantations  one,  Connecticut  five, 
New  York  six.  New  Jersey  four,  Pennsylvania  eight, 
Delaware  one,  Maryland  six,  Virginia  ten.  North  Caro 
lina  five.  South  Carolina  five,  and  Georgia  three. 

4.  When  vacancies  happen  in  the  representation  from 
any  State,  the  executive  authority  thereof  shall  issue 
writs  of  election  to  fill  such  vacancies. 

5.  The  House  of  Representatives  shall  choose  theu* 
Speaker  and  other  officers,  and  shall  have  the  sole  power 
of  impeachment. 


Part  I.]  CONSTITUTION.  57 


8 


9 


10 


11 
12 
13 


SECTION  3. 

1.  The  Senate  of  the  United  States  shall  be  composed 
of  two  Senators  from  each  State,  chosen  by  the  Legisla- 
ture thereof  for  six  years;  and  each  Senator  shall  have 
one  vote. 

2.  Immediately  after  they  shall  be  assembled  in  con- 
sequence of  the  first  election,  they  shall  be  divided,  as 
equally  as  may  be,  into  three  classes.  The  seats  of  the 
Senators  of  the  first  class  shall  be  vacated  at  the  expira- 
tion of  the  second  year ;  of  the  second  class,  at  the  expi- 
ration of  the  fourth  year ;  and  of  the  third  class,  at  the 
expiration  of  the  sixth  year;  so  that  one-thu-d  may  be 
chosen  every  second  year  :  and  if  vacancies  happen,  by 
resignation  or  otherwise,  during  the  recess  of  the  Legis- 
lature of  any  State,  the  executive  thereof  may  make  tem- 
pory  appointments  until  the  next  meeting  of  the  Legisla- 
ture, which  shall  then  fill  such  vacancies. 

3.  No  person  shall  be  a  Senator  who  shall  not  have 
attained  to  the  age  of  thirty  years,  and  been  nine  years  a 
citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  inhabitant  of  that  State  for  which  he  shall 
be  chosen. 

4.  The  Vice-President  of  the  United  States  shall  be 
President  of  the  Senate,  but  shall  have  no  vote  unless 
they  be  equally  divided. 

5.  The  Senate  shall  choose  their  other  officers,  and 
also  a  President  pro  tempore  in  the  absence  of  the  Vice- 
President,  or  when  he  shall  exercise  the  office  of  Presi- 
dent of  the  United  States. 

6.  The  Senate  shall  have  the  sole  power  to  try  all 
impeachments.  When  sitting  for  that  purpose,  they 
shall  be  on  oath  or  affirmation.  When  the  President  of 
the  United  States  is  tried,  the  Chief  Justice  shall  pre- 
side ;  and  no  person  shall  be  convicted  without  the  con 
currence  of  two-thirds  of  the  members  present. 

7.  Judgment  in  cases  of    impeachment  shall  not  ex- 


58  ANALYSIS  OF  CIVIL  GOVEKNMENT.       [Part  I. 


14 


15 


16 


17 


18 


19 


20 


tend  farther  than  to  removal  from  office,  and  disqualifica- 
tion to  hold  and  enjoy  any  office  of  honor,  trust,  or  profit, 
under  the  United  States ;  but  the  party  convicted  shall 
nevertheless  be  liable  and  subject  to  indictment,  trial, 
judgment,  and  punishment,  according  to  law. 

SECTION  4. 

1.  The  times,  places,  and  manner  of  holding  elections 
for  Senators  and  Representatives  shall  be  prescribed  in 
each  State  by  the  Legislature  thereof ;  but  the  Congress 
may  at  any  time,  by  law,  make  or  alter  such  regulations, 
except  as  to  the  places  of  choosing  Senators. 

2.  The  Congress  shall  assemble  at  least  once  in  every 
year ;  and  such  meeting  shall  be  on  the  first  Monday  in 
December,  unless  they  shall  by  law  appoint  a  difierent  day. 

SECTION  5. 

1.  Each  House  shall  be  the  judge  of  the  elections,  re- 
turns, and  qualifications  of  its  own  members ;  and  a  ma- 
jority of  each  shall  constitute  a  quorum  to  do  business, 
but  a  smaller  number  may  adjourn  from  day  to  day,  and 
may  be  authorized  to  compel  the  attendance  of  absent 
members,  in  such  manner  and  under  such  penalties  as 
each  House  may  provide. 

2.  Each  House  may  determine  the  rules  of  its  pro- 
ceedings, punish  its  members  for  disorderly  behavior, 
and,  with  the  concurrence  of  two-thirds,  expel  a  member. 

3.  Each  House  shall  keep  a  journal  of  its  proceed- 
ings, and  from  time  to  time  publish  the  same,  excepting 
such  parts  as  may,  in  their  judgment,  require  secrecy; 
and  the  yeas  and  nays  of  the  members  of  either  House 
on  any  question  shall,  at  the  desire  of  one-fifth  of  those 
present,  be  entered  on  the  journal. 

4.  Neither  House,  during  the  session  of  Congress, 
shall,  without  the  consent  of  the  other,  adjourn  for  more 
than  three  days,  nor  to  any  other  place  than  that  in  which 
the  two  Houses  shall  be  sitting. 


PabT  I.]  CONSTITUTION.  59 


SECTION    6. 


21 


1.  The  Senators  and  Representatives  shall  receive  a 
compensation  for  their  services,  to  be  ascertained  by  law, 
and  paid  out  of  the  treasury  of  the  United  States.  They 
shall,  in  all  cases  C2;ccpt  treason,  felony,  and  breach  of 
the  peace,  be  privileged  from  arrest  during  their  attend- 
ance at  the  session  of  their  respective  Houses,  and  in 
going  to  and  returning  from  the  same  ;  and  for  any  speech 
or  debate  in  either  House,  they  shall  not  be  questioned  in 
any  other  place. 

2.  No  Senator  or  Representative  shall,  during  the 
time  for  which  he  was  elected,  be  appointed  to  any  civil 
office  under  the  authority  of  the  United  States  which 
shall  have  been  created,  or  the  emoluments  whereof  shall 
have  been  increased,  during  such  time;  and  no  person 
holding  any  office  under  the  United  States  shall  be  a 
men.ber  of  either  House  during  his  continuance  in  office. 

.         SECTION    7, 

1.  All  bills  for  raising  revenue  shall  originate  in  the 
House  of  Representatives;  but  the  Senate  may  propose 
or  concur  with  amendments,  as  on  other  bills. 

2.  Every  bill  which  shall  have  passed  the  House  of 
Representatives  and  the  Senate,  shall,  before  it  become 
a  law,  be  presented  to  the  President  of  the  United 
States :  if  he  approve,  he  shall  sign  it ;  but,  if  not,  he  shall 
return  it,  with  his  objections,  to  that  House  in  which  it 
shall  have  originated,  who  shall  enter  the  objections  at 
large  on  their  journal,  and  proceed  to  reconsider  it.  If, 
after  such  reconsideration,  two-thirds  of  that  House  shall 

O /j  agree  to  pass  the  bill,  it  shall  be  sent,  together  with  the 
objections,  to  the  other  House,  by  which  it  shall  like- 
wise be  reconsidered  ;  and,  if  approved  by  two-thirds  of 
that  House,  it  shall  become  a  law.  But,  in  all  such  cases, 
the  votes  of  both  Houses  shall  be  determined  by  yeas 
and  nays ;  and  the  names  of  the  persons  voting  for  and 


22 


23 


60  ANALYSIS    OF    CIVIL    GOVERNMENT.       [PabT  I. 

against  the  bill  shall  be  entered  on  the  journal  of  each 
House  respectively.  If  any  bill  shall  not  be  returned  by 
the  President  within  ten  days  (Sundays  excepted)  after 
it  shall  have  been  presented  to  him,  the  same  shall  be  a 
law  in  like  manner  as  if  he  had  signed  it,  unless  the 
Congress,  by  their  adjournment,  prevent  its  return ;  in 
■which  case  it  shall  not  bo  a  law. 

3.  Every  order,  resolution,  or  vott3,  to  which  the  con- 
currence of  the  Senate  and  House  of  Representatives 
may  be  necessary  (except  on  a  question  of  adjourn- 
ment), shall  be  presented  to  the  President  of  the  United 
States,  and,  before  the  same  shall  take  effect,  shall  bo 
approved  by  him,  or,  being  disapproved  by  him,  shall  bo 
re-passed  by  two-thirds  of  the  Senate  and  House  of  Kep- 
resentatives,  according  to  the  rules  and  limitations  pre- 
scribed in  the  case  of  a  bill. 


25 


SECTION   8. 

The  Congress  shall  have  power,  — 

1.  To  lay  and  collect  taxes,  duties,  imposts,  and  ex- 
cises, to  pay  the  debts,  and  provide  for  the  common  de- 
fense and  general  welfare,  of  the  United  States;  but  all 
duties,  imposts,  and  excises  shall  be  uniform  throughout 
the  United  States ; 

2.  To  borrow  money  on  the  credit  of  the  United 
States ;  ::g>j5    f  , 

3.  To  regulate  commerce  with  foreign  nations,  land 
among  the  several  States,  and  with  the  Indian  tribes ; 

4.  To  establish  a  uniform  rule  of  naturalization,  and 
uniform  laws  on  the  subject  of  bankruptcies,  throughout 
the  United  States ; 

5.  To  coin  money,  regulate  the  value  thereof  and  of 
Q  A  foreign  coin,  and  fix  the  standard  of  weights  and  meas- 
^^  ures; 

6.  To  provide  for  the  punishment  of  counterfeiting  tho 
securities  and  current  coin  of  the  United  States ; 


26 

27 
28 

29 


31 


Part  I.]  CONSTITUTION.  61 

-<V       7.  To  establish  post-offices  and  post-roads; 

8.  To  promote  the  progress  of  science  and  useful  arts, 
00  by  securing  for  limited  times,  to  authors  aud  inventors, 
^^  the  exclusive  right  to  their  respective  writings  and  dis- 
coveries ; 
Q/j  9.  To  constitute  tribunals  inferior  to  the  Supremo 
^i  Court; 

10.  To  define  and  punish  piracies  and  felonies  com- 
0  p^  mitted  on  the  high  seas,  and  offenses  against  the  law  of 
^^  nations  ; 

11.  To  declare  war,  grant  letters  of  marque  and  re- 
OO.  prisal,  and  make  rules  concerning  captures  on  land  and 
^^  water; 

12.  To  raise  and  support  armies ;  but  no  appropriation 
O*^  of  money  to  that  use  shall  be  for  a  longer  term  than  two 
^  *    years ; 

-Is.       13.  To  provide  and  maintain  a  navy ; 

OQ       14.  To  make  rules  for  the  government  and  regulation 
^  ^  of  the  land  and  naval  forces ; 

15.  To  provide  for  calling  forth  the  militia  to  execute 
the  laws  of  the  Union,  suppress  insurrections,  and  repel 
invasions ; 

16.  To  provide  for  organizing,  arming,  and  disciplining 
A  -i    the    militia,    and    for   governing   such   part    of    them   as 

^-L  may  be  employed  in  the  service  of  the  United  States, 
reserving  to  the  States  respectively  the  appointment  of 
the  officers,  and  the  authority  of  training  the  militia  ac- 
cording to  the  discipline  prescribed  by  Congress ; 

17.  To  exercise  exclusive  lenjislation  in  all  cases 
A  O  whatsoever    over   such  district    (not  exceeding  ten  miles 

^^  square)  as  may,  by  cession  of  particular  States  and  the 
acceptance  of  Congress,  become  the  seat  of  the  Govern- 
ment of  the  United  States ;  and  to  exercise  like  authority 
over  all  places  purchased,  by  the  consent  of  the  Legislature 


40 


43 


44 


62  ANALYSIS   OF   CIVIL   GOVEENMENT.        [Part  I. 

of  the  State  in  which  the  same  shall  be,  for  the  erection  of 
forts,  magazines,  arsenals,  dock-yards,  and  other  needful 
buildings.     And,  — 

18.  To  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  powers, 
and  all  other  powers  vested  by  this  Constitution  in  the 
.Government  of  the  United  States,  or  in  any  department 
or  officer  thereof. 

SECTION  9. 

1.  The  migration  or  importation  of  such  persons  as 
any  of  the  States  now  existing  shall  think  proper  to  ad- 
mit shall  not  be  prohibited  by  the  Congress  prior  to  the 
year  one  thousand  eight  hundred  and  eight ;  but  a  tax  or 
duty  may  be  imposed  on  such  importation,  not  exceeding 
ten  dollars  for  each  person. 

2.  The  privilege  of  the  writ  of  habeas  corpus  shall  not 
be  suspended,  unless  when,  in  cases  of  rebellion  or  inva- 
sion, the  public  safety  may  require  it. 

3.  No  bill  of  attainder,  or  ex-post-facto  law,  shall  be 
passed. 

4.  No  capitation  or  other  direct  tax  shall  be  laid,  un- 
less in  proportion  to  the  census  or  enumeration  herein- 
before directed  to  be  taken. 

6.  No  tax  or  duty  shall  be  laid  on  articles  exported 
from  any  State.  No  preference  shall  be  given  by  any 
regulation  of  commerce  or  revenue  to  the  ports  of  one 
State  over  those  of  another;  nor  shall  vessels  bound  to 
or  from  one  State  be  obliged  to  enter,  clear,  or  pay 
duties,  in  another. 

6.  No  money  shall  be  drawn  from  the  treasury  but  in 
consequence  of  appropriations  made  by  law ;  and  a  regu- 
lar statement  and  account  of  the  receipts  and  expenditures 
of  all  public  money  shall  be  published  from  time  to  time. 

7.  No  title  of  nobility  shall  be  granted  by  the  United 
States;  and  no  person  holding  any  office  of  profit  Oi* 
trust  under  them  shall,  without  the  consent  of  the  Con- 


45 
46 

47 
48 


49 


50 


51 


52 


PartL]  constitution.  63 

gress,  accept  of  any  present,  emolument,  office,  or  title, 
of  any  kind  whatever,  from  any  king,  prince,  or  foreign 
state. 

SECTION  10. 

1.  No  State  shall  enter  into  any  treaty,  alliance,  or 
confederation ;  grant  letters  of  marque  and  reprisal ;  coin 
money ;  emit  bills  of  credit ;  make  any  thing  but  gold  and 
silver  coin  a  tender  in  payment  of  debts ;  pass  any  bill  of 
attainder,  ex-post-facto  law,  or  law  impairing  the  obliga- 
tion of  contracts  ;  or  grant  any  title  of  nobility. 

2.  No  State  shall,  without  the  consent  of  the  Congress, 
lay  any  imposts  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  its  in- 
spection laws ;  and  the  net  produce  of  all  duties  and  im- 
posts laid  by  any  State  on  imports  or  exports  shall  be 
for  the  use  of  the  treasury  of  the  United  States,  and  all 
such  laws  shall  be  subject  to  the  revision  and  control  of 
the  Congress.  No  State  shall,  without  the  consent 
of  Congress,  lay  any  duty  of  tonnage,  keep  troops  or  ships- 
of-war  in  time  of  peace,  enter  into  any  agreement  or 
compact  with  another  State  or  with  a  foreign  power,  or 
engage  in  war,  unless  actually  invaded,  or  in  such  immi- 
nent danger  as  will  not  admit  of  delay. 

ARTICLE  II. 

SECTION   1. 

1.  The  executive  power  shall  be  vested  in  a  Presi- 
dent of  the  United  States  of  America.  He  shall  hold 
his  office  during  the  term  of  four  years,  and,  together 
with  the  Vice-President  chosen  for  the  same  term,  be 
elected  as  follows  :  — 

2.  Each  State  shall  appoint,  in  such  manner  as  the 
Legislature  thereof  may  direct,  a  number  of  Electors, 
equal  to  the  whole  number  of  Senators  and  Representa- 
tives to  which  the  State  may  be  entitled  in  the  Con- 
gress; but  no  Senator  or  Representative,  or  person  hold- 


53 


54 


M  ANALYSIS   OF   CIVIL  GOVERNMENT.      [Part  I. 

ing  an  office  of  trust  or  profit  under  the  United  States, 
shall  be  appointed  an  Elector. 

{Superseded  by  the  I2th  Article  of  Amendments.) 

3.  The  Electors  shall  meet  in  their  respective  States,  and  vote 
by  ballot  for  two  persons,  of  whom  one,  at  least,  shall  not  be  an 
inhabitant  of  the  same  State  with  themselves.  And  they  shall 
make  a  list  of  all  the  persons  voted  for,  and  of  the  number  of 
votes  for  each ;  which  list  they  shall  sign  and  certify,  and  trans- 
mit scaled  to  the  seat  of  the  Government  of  the  United  States, 
directed  to  the  President  of  the  Senate.  The  President  of  the 
Senate  shall,  in  the  presence  of  the  Senate  and  House  of  Repre- 
sentatives, open  all  the  certificates,  and  the  votes  shall  then  be 
counted.  The  person  having  the  greatest  number  of  votes  shall 
be  the  President,  if  such  number  be  a  majority  of  the  whole 
nnmbcr  of  Electors  appointed ;  and,  if  there  be  more  than  one 
who  have  such  majority  and  have  an  equal  number  of  votes, 
then  the  House  of  Representatives  shall  immediately  choose,  by 
ballot,  one  of  them  for  President ;  and,  if  no  person  have  a 
majority,  then,  from  the  five  highest  on  the  list,  the  said  House 
shall  in  like  manner  choose  the  President.  But,  in  choosing  the 
President,  the  votes  shall  be  taken  by  States,  the  representation 
from  each  State  having  one  vote :  a  quorum  for  this  purpose 
shall  consist  of  a  member  or  members  from  two-thirds  of  the 
States,  and  a  majority  of  all  the  States  shall  be  necessary  to  a 
choice.  In  every  case,  after  the  choice  of  the  President,  the  per- 
son having  the  greatest  number  of  votes  of  the  Electors  shall  be 
Vice-President.  But,  if  there  should  remain  two  or  more  who 
have  equal  votes,  the  Senate  shall  choose  from  them,  by  ballot, 
the  Vice-President. 

4.  The  Congress  may  determine  the  time  of  choosing 
the  Electors,  and  the  day  on  which  they  shall  give  their 
votes ;  which  day  shall  be  the  same  throughout  the  United 
States. 

5.  No  person,  except  a  natural-bom  citizen,  or  a  citi- 
zen of  the  United  States  at  the  time  of  the  adoption  of 
this  Constitution,  shall  be  eligible  to  the  office  of  Presi- 
dent ;  neither  shall  any  person  be  eligible  to  that  office 
who  shall  not  have  attained  to  the  age  of  thirty-five  years, 
and  been  fourteen  years  a  resident  within  the  UnitecJ 
States. 


55 


56 


Part  L]  COXSTITUTION.  65 


57 


58 


59 


60 


6.  In  case  of  the  removal  of  the  President  from  ofi&ce, 
or  of  his  death,  resignation,  or  inability  to  discharge  the 
powers  and  duties  of  the  said  office,  the  same  shall  de- 
volve on  the  Vice-President ;  and  the  Congress  may  by 
law  provide  for  the  case  of  removal,  death,  resignation, 
or  inability,  both  of  the  President  and  Vice-President, 
declaring  what  officer  shall  then  act  as  President,  and 
such  officer  shall  act  accordingly  until  the  disability  be 
removed,  or  a  President  shall  be  elected. 

7.  The  President  shall,  at  stated  times,  receive  for 
his  services  a  compensation,  which  shall  neither  be  in- 
creased nor  diminished  during  the  period  for  which  he 
shall  have  been  elected ;  and  he  shall  not  receive  within 
that  period  any  other  emolument  from  the  United  States, 
or  any  of  them. 

8.  Before  he  enter  on  the  execution  of  his  office,  ho 
shall  take  the  following  oath  or  affirmation  :  — 

9.  •*!  do  solemnly  swear  (or  affirm)  that  I' will  faith- 
fully execute  the  office  of  President  of  the  United  States ; 
and  will,  to  the  best  of  my  ability,  preserve,  protect,  and 
defend  the  Constitution  of  the  United  States." 

SECTION   2. 

1.  The  President  shall  be  commander-in-chief  of  the 
army  and  navy  of  the  United  States,  and  of  the  militia 
of  the  several  States  when  called  into  the  actual  service 
of  the  United  States :  he  may  require  the  opinion,  in 
writing,  of  the  principal  officer  in  each  of  the  executive 
departments,  upon  any  subject  relating  to  the  duties  of 
their  respective  offices ;  and  he  shall  have  power  to  grant 
reprieves  and  pardons  for  offenses  against  the  United 
States,  except  in  cases  of  impeachment. 

2.  He  shall  have  power,  by  and  with  the  advice  and 
consent  of  the  Senate,  to  make  treaties,  provided  two- 
thirds  of  the  Senators  present  concur ;  and  he  shall  nomi- 
nate, and   by  and  with  the   advice   and   consent   of  the 

ft 


66  ANALYSIS  OF  CIVIL  GOVERNMENT.       [Part  I. 


61 


62 


63 


Senate  shall  appoint,  ambassadors,  other  public  ministers, 
and  consuls,  judges  of  the  Supreme  Court,  and  all  other 
officers  of  the  United  States  whose  appointments  are  not 
herein  otherwise  provided  for,  and  which  shall  be  estab- 
lished by  law  :  but  the  Congress  may  by  law  vest  the  ap- 
pointment of  such  inferior  officers  as  they  think  proper 
in  the  President  alone,  in  the  courts  of  law,  or  in  the 
heads  of  departments. 

3.  The  President  shall  have  power  to  fill  up  all  vacan- 
cies that  may  happen  during  the  recess  of  the  Senate 
by  granting  commissions,  which  shall  expire  at  the  end  of 
their  next  session. 

SECTION   3. 

1.  He  shall,  from  time  to  time,  give  to  the  Congress 
information  of  the  state  of  the  Union,  and  recommend  to 
their  consideration  such  measures  as  he  shall  judge  neces- 
sary and  expedient ;  he  may,  on  extraordinary  occasions, 
convene  both  Houses,  or  either  of  them,  and,  in  case  of 
disagreement  between  them  with  respect  to  the  time  of 
adjournment,  he  may  adjourn  them  to  such  time  as  he 
shall  think  proper;  he  shall  receive  ambassadors  and 
other  public  ministers ;  he  shall  take  care  that  the  laws 
be  faithfully  executed,  and  shall  commission  all  the  offi- 
cers of  the  United  States. 


64: 


SECTION 

1.  The  President,  Vice-President,  and  all  civil  officers 
of  the  United  States,  shall  be  removed  from  office  on 
impeachment  for,  and  conviction  of,  treason,  bribery,  or 
other  hish  crimes  and  misdemeanors. 


ARTICLE  III. 

SECTION    1. 

1.  The  judicial  power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior  courts 
as  the  Congress  may,  from  time  to  time,  ordain  and  estab- 


66 


Pakt  I.]  CONSTITUTION  67 

Op^  lish.       The  judges,    both   of    the   supreme   and   inferior 
^^  courts,  shall  hold  their  offices  during  good  behavior  ;  and 
shall,   at  stated  times,   receive  for  their  services  a  com- 
pensation, which   shall   not   be   diminished   during  their 
continuance  in  office. 

SECTION   2. 

1.  The  judicial  power  shall  extend  to  all  cases  in  law 
and  equity  arising  under  this  Constitution,  the  laws  of 
the  United  States,  and  treaties  made  or  which  shall  bo 
made  under  their  authority ;  to  all  cases  affecting  am- 
bassadors, other  public  ministers,  and  consuls ;  to  all  cases 
of  admiralty  and  maritime  jurisdiction ;  to  controversies 
to  which  the  United  States  shall  be  a  party;  (to  contro- 
versies between  two  or  more  States,)  between  a  State  and 
citizens  of  another  State,  between  citizens  of  different 
States,  between  citizens  of  the  same  State  claiming  lands 
under  grants  of  different  States,  and  between  a  State,  or 
the  citizens  thereof,  and  foreign  states,  citizens,  or  subjects. 

2.  In  all  cases  affecting  ambassadors,  other  public 
ministers,  and  consuls,  and  those  in  which  a  State  shall 
be  a  party,  the  Supreme  Court  shall  have  original  juris- 
diction. In  all  the  other  cases  before  mentioned,  the  Su- 
preme Court  shall  have  appellate  jurisdiction,  both  as  to 
law  and  fact,  with  such  exceptions  and  under  such  regu- 
lations as  the  Congress  shall  make. 

3.  The  trial  of  all  crimes,  except  in  cases  of  impeach- 
ment, shall  be  by  jury ;  and  such  trial  shall  be  held  in  the 
State  where  the  said  crimes  shall  have  been  committed : 
but,  when  not  committed  within  any  State,  the  trial  shall  be 
at  such  place  or  places  as  the  Congress  may  by  law  have 
directed. 

SECTION    3. 

1.  Treason  against  the  United  States  shall  consist 
only  in  levying  war  against  them,  or  in  adhering  to  their 
enemies,  giving  them  aid  and  comfort.  No  person  shall 
be  convicted  of  treason,  unless  on  the  testimony  of  two 


67 


68 


69 


70 


71 

72 
73 


74 


75 :: 


ANALYSIS   OF   CIVIL  GOVERNMENT.       [Part  I. 

witnesses  to  the  same  overt  act,  or  on   confession   in  open 
court. 

2.  The  Congress  shall  have  power  to  declare  the  pun- 
ishment of  treason ;  but  no  attainder  of  treason  shall  work 
corruption  of  blood,  or  forfeiture,  except  during  the  life 
of  the  person  attainted. 

ARTICLE  IV. 

SECTION   1. 

1.  Full  faith  and  credit  shall  be  given  in  each  State  to 
the  public  acts,  records,  and  judicial  proceedings,  of  every 
other  State.  And  the  Congress  may,  by  general  laws, 
prescribe  the  manner  in  which  such  acts,  records,  and 
proceedings  shall  be  proved,  and  the  effect  thereof. 

SECTION   2. 

1.  The  citizens  of  each  State  shall  be  entitled  to  all 
privileges  and  immunities  of  citizens  in  the  several  States. 

2.  A  person  charged  in  any  State  with  treason,  fel- 
ony, or  other  crime,  who  shall  flee  from  justice  and  be 
found  in  another  State,  shall,  on  demand  of  the  executive 
authority  of  the  State  from  which  he  fled,  be  delivered 
up,  to  be  removed  to  the  State  having  jurisdiction  of  the 
crime. 

3.  No  person  held  to  service  or  labor  in  one  State 
under  the  laws  thereof,  escaping  into  another,  shall,  in 
consequence  of  any  law  or  regulation  therein,  be  dis- 
charged from  such  service  or  labor,  but  shall  be  delivered 
up  on  claim  of  the  party  to  whom  such  service  or  labor 
may  be  due. 

SECTION  3.    -^  '^    -    r^;- 

1.  New  States  may  be  admitted  by  the  Congress  into 
this  Union  ;  but  no  new  State  shall  be  formed  or  erected 
within  the  jurisdiction  of  any  other  State,  nor  any  State 

formed  by  the  junction  of  two  or  more  States,  or  parts 


Part  I.]  COKSTITUTION.  69 


76: 


77 


78 


79 


of  States,  without  the  consent  of  the  legislatures  of  the 
States  concerned,  as  well  as  of  the  Congress. 

2.  The  Congress  shall  have  power  to  dispose  of  and 
make  all  needful  rules  and  regulations  rcrpecting  the  ter- 
itory,  or  other  property,  belonging  to  the  United  States ; 
and  nothing  in  this  Constitution  shall  be  so  construed  as 
to  prejudice  any  claims  of  the  United  States  or  of  any 
particular  State. 

SECTION  4. 

1.  The  United  States  shall  guarantee  to  every  State 
in  this  Union  a  republican  form  of  government,  and  shall 
protect  each  of  them  against  invasion,  and,  en  application 
of  the  legislature  or  of  the  executive  (when  the  legisla- 
ture can  not  be  convened),  against  domestic  violence. 

ARTICLE    V. 

1.  The  Congress,  whenever  two-thirds  of  both  Houses 
shall  deem  it  necessary,  shall  propose  amendments  to  this 
Constitution,  or,  on  the  application  of  the  legislatures  of 
two-thirds  of  the  several  States,  shall  call  a  convention 
for  proposing  amendments,  which,  in  either  case,  shall  be 
valid  to  all  intents  and  purposes  as  part  of  tliis  Constitu- 
tion, when  ratified  by  the  legislatures  of  three-fourths  of 
the  several  States,  or  by  conventions  in  three-fourths  there- 
of, as  the  one  or  the  other  mode  of  ratification  may  be 
proposed  by  the  Congress :  provided  that  no  amend- 
ment which  may  be  made  prior  to  the  year  one  thousand 
eight  hundred  and  eight  shall  in  any  manner  affect  the 
first  and  fourth  clauses  in  the  ninth  section  of  the  first 
article  ;  and  that  no  State,  without  its  consent,  shall  be 
deprived  of  its  equal  suffrage  in  the  Senate. 

ARTICLE  VI. 

1.  All  debts  contracted,  and  engagements  entered  into, 
before  the  adoption  of  this  Constitution,  shall  be  as  valid 


80 


Tff  ANALYSIS  OF  CIVIL  GOVERNMENT.       [Part  I. 

against  the  United  States,  under  this  Constitution,  as  un- 
der the  Confederation. 

2.  This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all.  trea- 
ties made,  or  which  shall  be  made,  under  the  authority  of 
the  United  States,  shall  be  the  supreme  law  of  the  land ; 
and  the  judges  in  every  State  shall  be  bound  thereby,  any 
thing  in  the  Constitution  or  laws  of  any  State  to  the  con- 
trary notwithstanding. 

3.  The  Senators  and  Representatives  before  mentioned, 
and  the  members  of  the  several  State  legislatures,  and 
all  executive  and  judicial  officers  both  of  the  United 
States  and  of  the  several  States,  shall  be  bound  by  oath 
or  affimiation  to  support  this  Constitution;  but  no  re- 
ligious test  shall  ever  be  required  as  a  qualification  to  any 
office  or  public  trust  under  the  United  States. 


81 


82 


ARTICLE    VII. 
1.  The  ratification  of   the  Conventions  of  nine  States 
shall  be  sufficient  for  the  establishment  of  this  Constitution 
between  the  States  so  ratifying  the  same. 


AMENDMENTS  TO   THE   CONSTITUTION. 
ARTICLE    L 


83 


84 


Congress  shall  make  no  law  respecting  an  establish- 
ment of  religion,  or  prohibiting  the  free  exercise  thereof; 
or  abridging  the  freedom  of  speech  or  of  the  press ;  or 
the  right  of  the  people  peaceably  to  assemble,  and  to  pe- 
tition the  government  for  a  redress  of  grievances. 

ARTICLE   II. 

A  well-regulated  militia  being  necessary  to  the  security 
of  a  free  State,  the  right  of  the  people  to  keep  and  bear 
anns  shall  not  be  infringed. 


Part  I.]         AMENDMENTS   TO   CONSTITUTION.  71 


85 
86 


ARTICLE  III. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
bouse  without  the  consent  of  the  owner ;  nor  in  time  of 
war  but  in  a  manner  prescribed  by  law. 

ARTICLE  IV. 

The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated ;  and  no  warrants  shall 
issue  but  upon  probable  cause,  supported  by  oath  or 
affirmation,  and  particularly  describing  the  place  to  bo 
searched,  and  the  persons  or  things  to  be  seized. 

ARTICLE   V. 

No  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  on  a  presentment  or  in- 
dictment of  a  grand  jury,  except  in  cases  arising  in  the 
land  or  naval  forces,  or  in  the  militia,  when  in  actual  ser- 
CYiy  vice,  in  time  of  war  or  public  danger;  nor  shall  any  per- 
^  *  son  be  subject,  for  the  same  offense,  to  be  twice  put  in 
jeopardy  of  life  or  limb ;  nor  shall  be  compelled,  in  any 
criminal  case,  to  be  a  witness  against  himself;  nor  be  de- 
prived of  life,  liberty,  or  property,  without  due  process 
of  law ;  nor  shall  private  property  be  taken  for  public  use, 
without  just  compensation. 

ARTICLE  VL 

In  all  criminal  prosecutions,  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial  by  an  impartial  jury 
of  the  State  and  district  wherein  the  crime  shall  have  been 
committed,  which  district  shall  have  been  previously  as- 
certained by  law ;  and  to  be  informed  of  the  nature  and 
cause  of  the  accusation ;  to  be  confronted  with  the  wit- 
nesses against  him ;  to  have  compulsory  process  for  ob- 
taining witnesses  in  his  favor ;  and  to  have  the  assistance 
of  counsel  for  his  defense. 


88 


72  ANALYSIS  6f  civil  GOVERNMENT.       [Part  I. 


ARTICLE   VII. 

In  suits  at  common  law,  wliere  tlie  value  in  contro- 
versy shall  exceed  twenty  dollars,  tbe  right  of  trial  by 
jury  shall  be  preserved  ;  and  no  fact,  tried  by  a  jury,  shall 
herwise   re-examined  in   any  court  of  the   United 
States  than  according  to  the  rules  of  the  common  law. 

ARTICLE    VIII. 


OQ  jorysl 
OU  he   otl 


A  A       Excessive   bail   shall   not   be   rec[uired,   nor   excessive 


fines  imposed,  nor  cruel  and  unusual  punishments  inflicted. 


ARTICLE    IX. 


91 


92 


The  enumeration  in  the  Constitution  of  certain  rights 
shall  not  be  construed  to  deny  or  disparage  others  retained 
by  the  people. 


ARTICLE  X. 


The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  re- 
served to  the  States  respectively,  or  to  the  people. 


AQ  menc( 
^0  by  ci 


ARTICLE  XI. 

The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity  com- 
menced or   prosecuted  against  one  of  the   United  States 
citizens  of  another  State,  or  by  citizens  or  subjects  of 
any  foreign  State. 


ARTICLE    XIL 

1.  The  electors  shall  meet  in  their  respective  States, 
and  vote  by  ballot  for  President  and  Vice-President,  one 
of  whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
State  with  themselves  :  they  shall  name  in  their  ballots 
the  person  voted  for  as  President,  and  in  distinct  ballots 
the  person  voted  for  as  Vice-President ;  and  they  shall 
make  distinct  lists  of  all  persons  vtit^d  for  as  Presidient, 


Part  I.]       amendm:ents  to  constitution.  73 

i  and  of  all  persons  voted  for  as  Vice-President,  and  of 
the  number  of  votes  for  each  ;  which  lists  they  shall  sign 
and  certify,  and  transmit,  sealed,  to  the  seat  of  the  govern- 
ment of  the  United  States,  directed  to  the  President  of 
the  Senate.  The  President  of  the  Senate  shall,  in  the  pres- 
ence of  the  Senate  and  House  of  Representatives,  open  all 
the  certificates,  and  the  votes  shall  then  be  counted  :  the 
person  having  the  greatest  number  of  votes  for  President 
shall  be  the  President,  if  such  number  be  a  majority  of 
the  whole  number  of  electors  appointed ;  and  if  no  per- 
son have  such  majority,  then,  from  the  persons  having  the 
highest  numbers,  not  exceeding  tlu-ee,  on  the  list  of  those 
voted  for  as  President,  the  House  of  Representatives 
shall  choose  immediately,  by  ballot,  the  President.  But, 
in  choosing  the  President,  the  votes  shall  be  taken  by 
States,  the  representation  from  each  State  having  one 
vote  :  a  quorum  for  this  purpose  shall  consist  of  a  mem- 
ber or  members  from  two-thirds  of  the  States,  and  a  ma- 
jority of  all  the  States  shall  be  necessary  to  a  choice. 
And  if  the  House  of  Representatives  shall  not  choose 
a  President,  whenever  the  right  of  choice  shall  devolve 
upon  them,  before  the  fourth  day  of  March  next  follow- 
ing, then  the  Vice-President  shall  act  as  President,  as  in 
the  case  of  the  death,  or  other  constitutional  disability,  of 
the  President. 

2.  The  person  having  the  greatest  number  of  votes 
Af:^  as  Vice-President  shall  be  the  Vice-President,  if  such 
^^  number  be  a  majority  of  the  whole  number  of  electors  ap- 
pointed ;  and  if  no  person  have  a  majority,  then,  from  the 
two  highest  numbers  on  the  list,  the  Senate  shall  choose 
the  Vice-President :  a  quorum  fo^  the  purpose  shall  con- 
sist of  two-thirds  of  the  whole  number  of  Senators  ;  and  a 
majority  of  tha  whole  number  shall  be  necessary  to  a  choice* 

3.  But  no  person  constitutionally  ineligible  to  the  office 
QP  of  President  shall  be  eligible  to  that  of  Vice-President  of 
t'D  the  United  States. 


74  ANALYSIS   OF  CIVIL  GOVERNMENT.       [Part  I. 


97 
98 


99 


100 


ARTICLE  XIII. 

1.  Neither  slavery  nor  involuntary  servitude,  except  as 
a  punishment  for  crime,  whereof  the  party  shall  have  been 
duly  convicted,  shall  exist  within  the  United  States,  or 
any  place  subject  to  their  jurisdiction. 

2.  Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation. 

ARTICLE  XIV. 

1.  All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens 
of  the  United  States  and  of  the  State  wherein  they  reside. 
No  State  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States ;  nor  shall  any  State  deprive  any  person  of 
Hfe,  liberty,  or  property,  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  pro- 
tection of  the  laws. 

2.  Representatives  shall  be  apportioned  among  the  several 
States  according  to  their  respective  numbers,  counting  the 
whole  number  of  persons  in  each  State,  excluding  Indians 
not  taxed.  But  when  the  right  to  vote  at  any  election  for 
the  choice  of  electors  for  President  and  Vice-President  of 
the  United  States,  representatives  in  Congress,  the  execu- 
tive and  judicial  officers  of  a  State,  or  the  members  of  the 
legislature  thereof,  is  denied  to  any  of  the  male  inhabitants 
of  such  State,  being  twenty-one  years  of  age  and  citizens 
of  the  United  States,  or  in  any  way  abridged,  except  for 
participation  in  rebelUon  or  other  crime,  the  basis  of  repre- 
sentation therein  shall  be  reduced  in  the  proportion  Tvhich 
the  number  of  such  male  citizens  shall  bear  to  the  whole 
number  of  male  citizens  twenty-one  years  of  age  in  such 


3.  No  person  shall  be  a  senator  or  representative  in 
Congress,  or  elector  of  President  and  Vice-President,  or 
hold  any  office,  civil  or  military,  under  the  United  States 


Part  I.]  RESOLUTIONS   OF  CONVENTION.  75 


101 


102 


or  under  any  State,  who,  having  previously  taken  an  oath 
as  a  member  of  Congress,  or  as  an  officer  of  the  United 
States,  or  as  a  member  of  any  State  legislature,  or  as  an 
executive  or  judicial  officer  of  any  State,  to  support  the 
Constitution  of  the  United  States,  shall  have  engaged  in 
insurrection  or  rebellion  against  the  same,  or  given  aid  or 
comfort  to  the  enemies  thereof.  But  Congress  may,  by  a 
vote  of  two-thirds  of  each  House,  remove  such  disability. 

4.  The  validity  of  the  public  debt  of  the  United  States 
authorized  by  law,  including  debts  incurred  for  payment 
of  pensions  and  bounties  for  services  in  suppressing  insur- 
rection and  rebellion,  shall  not  be  questioned. 

But  neither  the  United  States  nor  any  State  shall 
assume  or  pay  any  debt  or  obligation  incurred  in  aid  of 
insurrection  or  rebellion  against  the  United  States,  or  any 
claim  for  the  loss  or  emancipation  of  any  slave ;  but  all 
such  debts,  obligations,  or  claims,  shall  be  held  illegal  and 
void. 

5.  The  Congress  shall  have  power  to  enforce  by  appro- 
priate legislation  the  provisions  of  this  article. 


The  following  resolutions  of  the  Constitutional  Convention,  passed 
at  the  close  of  its  labors,  and  the  letter  of  its  President,  together 
with  a  copy  of  the  proposed  Constitution,  were  transmitted  to  Con- 
gress :  — 

In  Convention,  Monday,  Sept.  17,  1787. 

Present :  The  States  of  New  Hampshire,  Massachusetts,  Connecti- 
cut, Mr,  Hamilton  from  New  York,  New  Jersey,  Pennsylvania, 
Delaware,  Maryland,  Virginia,  North  Carolina,  South  Carolina, 
and  Georgia. 
Resolved,  That  the  preceding  Constitution  be  laid  before  the 
United  States  in  Congress  assembled  ;  and  that  it  is  the  opinion  of 
ikaa  Convention  that  it  should  afterwards  be  submitted  to  a  conven- 


76  ANALYSIS   OP  CIVIL  GOVEKKMENT.      [Part  t 

tion  of  delegates,  chosen  in  each  State  by  the  people  thereof,  under 
the  recommendation  of  its  Legislature,  for  their  assent  and  ratifica- 
tion ;  and  that  each  convention,  assenting  to  and  ratifying  the  same, 
should  give  notice  thereof  to  the  United  States  in  Congress  assem- 
bled. 

Resohed,  That  it  is  the  opinion  of  this  Convention,  that,  as  soon 
as  the  conventions  of  nine  States  shall  have  ratified  this  Constitu- 
tion, the  United  States  in  Congress  assembled  should  fix  a  day  on 
which  electors  should  be  appointed  by  the  States  which  shall  have 
ratified  the  same,  and  a  day  on  which  the  electors  should  assemble  to 
vote  for  the  President,  and  the  time  and  place  for  commencing  pro- 
ceedings under  this  Constitution ;  that,  after  such  publication,  the 
electors  should  be  appointed,  and  the  senators  and  representatives 
elected ;  that  the  electors  should  meet  on  the  day  fixed  for  the  elec- 
tion of  the  President,  and  should  transmit  their  votes,  certified, 
signed,  sealed,  and  directed  as  the  Constitution  requires,  to  the 
Secretary  of  the  United  States  in  Congress  assembled ;  that  the 
senators  and  representatives  should  convene  at  the  time  and  place 
assigned ;  that  the  senators  should  appoint  a  President  of  the  Sen- 
ate, for  the  sole  purpose  of  receiving,  opening,  and  counting  the 
votes  for  President ,  and  that,  after  he  shall  be  chosen,  the  Congress, 
together  with  the  President,  should,  without  delay,  proceed  to  exe- 
cute this  Constitution. 

By  the  unanunous  ordfer  of  the  Convention. 

GEORGE    WASHINGTON,  President. 
William  Jackson,  Secretary. 

In  Convention,  Sept.  17,  1787. 

SiR^  —  "We  have  now  the  honor  to  submit  to  the  consideration  of 
the  United  States  in  Congress  assembled  that  Constitution  which 
has  appeared  to  us  the  most  advisable. 

The  friends  of  our  country  have  long  seen  and  desired  that  the 
power  of  making  war,  peace,  and  treaties,  that  of  levying  money 
and  regulating  commerce,  and  the  correspondent  executive  and  ju- 
dicial authorities,  should  be  fully  and  effectually  vested  in  the  Gen- 
eral Government  of  the  Union.     But  the  impropriety  of  delegating 


Part  I.]  RESOLUTIONS   OF   CONVENTION.  77 

such  extensive  trust  to  one  body  of  men  is  evident :  hence  results 
the  necessity  of  a  different  organization. 

It  is  obviously  impracticable,  in  the  Federal  Government  of  these 
States,  to  secure  all  rights  of  independent  sovereignty  to  each,  and 
yet  provide  for  the  interest  and  safety  of  all.  Individuals  entering 
into  society  must  give  up  a  share  of  liberty  to  preserve  the  rest. 
The  mao-nitude  of  the  sacrifice  must  depend  as  well  on  situation  and 
circumstance  as  on  the  object  to  be  obtained.  It  is  at  all  times  dif- 
ficult to  draw  with  precision  the  line  between  those  rights  which 
must  be  surrendered  and  those  which  may  be  reserved ;  and,  on  the 
present  occasion,  this  difficulty  was  increased  by  a  difference  among 
the  several  States  as  to  their  situation,  extent,  habits,  and  particular 
interests. 

In  all  our  deliberations  on  this  subject,  we  kept  steadily  in  our 
view  that  which  appears  to  us  the  greatest  interest  of  every  true 
American,  —  the  consolidation  of  our  Union,  —  in  which  is  involved 
our  prosperity,  felicity,  safety,  perhaps  our  national  existence.  This 
important  consideration,  seriously  and  deeply  impressed  on  our 
minds,  led  each  State  in  the  Convention  to  be  less  rigid  on  points  of 
inferior  magnitude  than  might  have  been  otherwise  expected ;  and 
thus  the  Constitution  which  we  now  present  is  the  result  of  a 
spirit  of  amity,  and  of  that  mutual  deference  and  concession  which 
the  peculiarity  of  our  political  situation  rendered  indispensable. 

That  it  will  meet  the  full  and  entire  approbation  of  every  State, 
is  not,  perhaps,  to  be  expected ;  but  each  will  doubtless  consider, 
that,  had  her  interest  been  alone  consulted,  the  consequences  might 
have  been  particularly  disagreeable  or  injurious  to  others.  That  it 
is  liable  to  as  few  exceptions  as  could  reasonably  have  been  ex- 
pected, we  hope  and  believe  ;  that  it  may  promote  the  lasting  wel- 
fare of  that  country  so  dear  to  us  all,  and  secure  her  freedom  and 
happiness,  is  our  most  ardent  wish. 

With  great  respect,  we  have  the  honor  to  be,  sir,  your  Excellen- 
cy's most  obedient,  humble  servants. 

By  unanimous  order  of  the  Convention. 

GEORGE   WASHINGTON,  President. 
His  Excellency  the  President  of  Congress. 


78  ANALYSIS  OF  CIVIL  GOYEENMENT.       [Part  I. 


ANALYSIS 

OF    THE 

CONSTITUTION    OF    THE    UNITED    STATES. 

Note.  —  The  figures  at  the  end  of  the  paragraphs,  in  the  following 
analysis,  refer  to  paragraphs  in  the  Constitution  printed  in  this  work 
marked  with  corresponding  figures. 

PREAMBLE. 

We,  the  people  of  the  United  States, 

1.  In  order  to  form  a  more  perfect  Union, 

2.  Establish  justice, 

3.  Insure  domestic  tranquillity, 

4.  Provide  for  the  common  defense, 

5.  Promote  the  general  welfare,  and 

6.  Secure  the  blessings  of  liberty  to  ourselves  and  our  posterity, 

do  ordain  and  establish  this  Constitution  for  the  United  States 
of  America.    1. 

DEPARTMENTS. 
Civil  government  in  the  United  States  is  administered  through 
three  several  departments ;  viz. ,  — 
I.  The  Legislative, 
IT.  The  Executive,  and 
III.  The  Judicial. 

LEGISLATIVE. 

All  legislative  powers  granted  by  the  Constitution  are  vested  in 
a  Congress  of  the  United  States,  consisting  of  a  Senate  and  House 
of  Representatives.   2. 

CHAPTER  I. 

HOUSE   OF   REPRESENTATIVES. 

ARTICLE  I.  — PROPORTION. 

1,  The  number  of  representatives  shall  not  exceed  one  for  every 
thirty  thousand.    Sm 


PaetI.]         analysis  op  constitution.  79 

2.  Until  the  first  enumeration  was  made,  the  States  were  aUowed 
to  choose  as  follows  :  — 

New  Hampshire,  3.  Delaware,  1. 

Massachusetts,  8.  Maryland,  6. 

Connecticut,  5.  Virginia,  10. 

New  York,  6.  North  Carolina,  5. 

New  Jersey,  4.  South  Carolina,  5. 

Pennsylvania,  8.  Georgia,  3. 
Rhode-Island  and  Providence  Plantations,  1.   S, 

AET.  H.  — HOW  APPOBrriONED. 

Representatives  shall  be  apportioned  among  the  several  States 
according  to  their  respective  numbers,  which  shall  include, 

1.  The  whole  number  of  free  persons ; 

2.  Those  bound  to  service  for  a  term  of  years ; 
8.  Indians  who  are  taxed ;  and 

4.  Three-fifths  of  all  other  persons  except  Indians  who  are  not 
taxed.    S,     (See  appendix  to  Analysis  C.) 

ART.  III.  — ELIGIBILITY. 

1.  A  representative  must  have  attained  to  the  age  of  twenty-five 

years. 

2.  Must  have  been  seven  years  a  citizen  of  the  United  States. 

3.  When  elected,  must  be  an  inhabitant  of  the   State  in  which 

chosen.    4:. 

4.  No  United-States  officer  shall  be  a  member  of  either  House  of 

Congress.    22,     (See  appendix  to  Analysis  D.) 

ART.  rV.  — TERM. 

Members  are  chosen  every  second  year.   3. 

ART.  v.  — BY  WHOM  ELECTED, 

By  the  people  of  the  several  States.    3« 

ART.  VI.  — ELECTORS. 

The  electors  in  each  State  shall  have  the  qualifications  requisite 
for  electors  of  the  most  numerous  branch  of  the  State  legisla- 
ture.   3« 


80  ANALYSIS   OF   CIVIL  GOVERNMENT.       [Part  I. 

ART.  VII.  —  VACANCIES. 

When  vacancies  happen  in  the  representation  from  any  State,  the 
executive  authority  thereof  shall  issue  writs  of  election  to  fill  such 
vacancies.    6. 

ART.  VIII.  — CENSUS. 

1.  How  made.  — In  such  manner  as  Congress  shall  by  law  direct. 

2.  When  made.  —  1st.   The    actual    enumeration   shall  be   made 

within  three  years  after  the  first  meeting  of  Congress. 
2d.  It  shall  be  made  within  every  subsequent  term  of  ten 
years.    5. 

ART.  IX.  — HOUSE  POWERS. 

1.  To  choose  their  Speaker  and  other  officers. 

2.  Sole  power  of  originating  impeachments.    7, 

3.  Sole  power  of  originating  bills  for  raising  revenue.    33. 

4.  Co-ordinate  with  the  Senate  in  general  legislation.    3. 

5.  When   the   electors   of   President   and   Vice-President   of  the 

United  States  fail  to  elect  a  President,  the  House  of  Repre- 
sentatives shall  elect  one.    94:. 


CHAPTER  II. 

UNITED-STATES  SENATE. 

ART.  I.  — HOW  COMPOSED. 

Of  two  senators  from  each  State.    8. 

ART.  II.  — ELIGIBILITY. 

1.  Must  have  attained  to  the  age  of  thirty  years. 

2.  Must  have  been  nine  years  a  citizen  of  the  United  States. 

3.  When  elected,   shall  be  an  inhabitant  of  the  State  for  which 

chosen.    1 0 . 

4.  No  United-States  officer  shall  be  a  member  of  either  House  of 

Congress.    SS.     (See  appendix  to  Analysis  D.) 

ART.  IIL  — TERM. 

The  senatorial  term  is  six  years.    8. 


Part  I.]  ANALYSIS  OF  CONSTITUTION.  81 

ART.  IV.— BY  WHOM  CHOSEN. 

By  the  legislatures  of  the  several  States.    8. 

ART.  v.  — WHEN  CHOSEN. 

One-third  the  number  of  senators  shall  be  chosen  every  second 
year.    O. 

''  ART.  VI.  — HOW  CLASSED. 

Immediately  after  they  shall  be  assembled  in  consequence  of  the 
first  election,  they  shall  be  divided  as  equally  as  may  be  into  three 
classes  :  — 

1.  The  seats  of  the  senators  of  the  first  class  shall  be  vacated  at 

the  expiration  of  the  second  year. 

2.  Of  the  second  class,  at  the  expiration  of  the  fourth  year. 

3.  Of  the  third  class,  at  the  expiration  of  the  sixth  year.    9. 

ART.  VII.  —  VACANCIES. 

If  vacancies  happen  by  resignation  or  otherwise  during  the 
recess  of  the  legislature  of  any  State, 

1.  The  executive  thereof  may  make  temporary  appointments  until 

the  next  meeting  of  the  legislature. 

2.  The  legislature  shall  then  fill  such  vacancies.   O, 

ART.  VIII.  — VOTE. 

Each  senator  shall  have  one  vote.    8. 

ART.  IX.  — PRESIDING  OFFICER. 

1.  The  Vice-President  of  the  United  States  shall  be  President  of 

the  Senate. 

2.  He  shall  have  no  vote  unless  they  be  equally  divided.    11. 

3.  The  Senate  shall  also  choose  a  president  jyro  tempore  in  the 

absence  of  the  Vice-President,  or  when  he  shall  exercise  the 
oflfice  of  President  of  the  United  States.    12. 

ART.  X.  — SENATE  POWERS. 

1.  Legislative.  —  1st.   Co-ordinate  with  the  House  of  Representa- 
tives in  general  legislation,    d* 
2d.    May  propose  or  concur  with  amendments  to  bills  for  rais- 
ing revenue.    23. 


82  ANALYSIS  OF  CIVIL  GOVERNMENT.        [Part  I. 

2.  Executive.  —  1st.  To  ratify  treaties  proposed  by  the  President 

of  the  United   States,   two-thirds  of  the  senators  present 
concurring. 
2d.    To  confirm  the  following  officers  when  nominated  by  the 
President  of  the  United  States  :  — 

1st.  Ambassadors,  other  public  ministers,  and  consuls. 
2d.   Judges  of  the  Supreme  Court. 
3d.   All  other   officers  of  the  United  States  whose  ap- 
pointments are  not  otherwise  provided  for  by  the  Con- 
stitution, and  which  shall  be  established  by  law.    Gl. 

3.  Elective.  —  1st.  Excepting  their    president,  they  shall  choose 

their  officers,  and  also  a  president  pro  tempore.    11,  12. 
2d.    When  the  electors  of  President  and  Vice-President  of 
the  United  States  fail  to  elect  a  Vice-President,  the  Senate 
shall  elect  one.    05. 

4.  Judicial.  —  1st.   The  Senate  has  the  sole  power  to  try  all  im- 

peachments, when  sitting   for   that  purpose,   on   oath   or 
affirmation.    13. 
2d.    The  Chief  Justice  shall  preside  when  the  President  of 

the  United  States  is  tried. 
3d.    Without  the  concurrence  of  two-thirds  of  the  members 

present,  no  person  shall  be  convicted.    13. 
4th.  May  render  judgment  of  impeachment  no  further  than, — 
1st.  To  removal  from  office ;  and, 
2d.    Disqualification  to  hold  and  enjoy  any  office  of 
honor,   trust,  or  profit  under  the   United   States. 
14. 


CHAPTER  m. 

PROVISIONS  COMMON  TO  BOTH  HOUSES. 

ARTICLE  I.  — MEMBERSHIP. 

Each  house  shall  be  the  judge  of  the  elections,  returns,  and  quali- 
fications of  its  members.    17. 


Part  I.]  ANALYSIS  OF  CONSTITUTION.  83 

ART.  II.  — QUORUM. 

1.  A  majority  of  either  house  is  a  quorum  to  do  business. 

2.  A  smaller  number  may  adjourn  from  day  to  day. 

3.  A  smaller  number  may  be  authorized  to  compel  the  attendance 

of  absent  members,  in  such  manner  and  under  such  penalties 
as  each  house  may  provide.    17, 

ART.  III. -JOURNAL. 

1.  Each  house  shall  keep  a  journal  of  its  proceedings. 

2.  They  shall  publish  the  same  from  time  to  time,  except  such  parts 

as  in  their  judgment  shall  require  secrecy.    X0« 

ART.  IV.  — YEAS  AND  NAYS. 

At  the  desire  of  one-fifth  of  those  present,  the  yeas  and  nays  of 
the  members  of  either  house  shall  be  entered  on  the  journal  on  any 
question.    10, 

ART.  v.  — BUSINESS  RULES. 

Each  house  may  determine  the  rules  of  its  proceedings.    18. 

,  ART.  VL  — PENALTIES. 

1.  Either  house  may  punish  its  members  for  disorderly  behavior ;  and, 

2.  With  the  concurrence  of  two-thirds,  expel  a  member.    18. 

ART.  VII.  —  PROHIBITIONS. 

1.  Adjournments. 

1st.  Neither  house  during  the  session  of  Congress  shall,  with- 
out the  consent  of  the  other,  adjourn  for  more  than  three 
days;  nor, 

2d.  To  any  other  place  than  that  in  which  the  two  houses  shall 
be  sitting.    20. 

2.  On  Members.  —  No  member  of  either  house  shall,  during   the 

time   for  which  he  was  elected,  be  appointed   to  any  office 

under  the  United  States, 

1st.  Which  shall  have  been  created  during  such  time ;  nor, 
2d.    The  emoluments  of  which  have  been  increased  during 
such  time.   33* 


84  ANALYSIS   OF  CIVIL.  GOVEBNMENT.       [Pabt  I. 

ART.  yill.  — OFFICIAL  OATH. 

The  senators  and  representatives  shall  be  bound  by  oath  or  affir- 
mation to  support  the  Constitution  of  the  United  States.    81. 

ART.  IX.  — SALARIES. 

1.  The  members  shall  receive  a  compensation  for  their  services,  to 

be  ascertained  by  law  ;  and, 

2.  The  same  shall  be  paid  from  the  treasury  of  the  United  States. 

21. 

CHAPTER  IV. 

POWERS  OF  CONGRESS. 

ARTICLE  I.  —  FINANCES. 

1.  Resources. 

1st.  To  lay  and  collect  taxes,  uniform  duties,  imposts   and 
excises.    SO. 

But  all  direct  taxes  must  be  apportioned  among  the  sev- 
eral States  according  to  their  respective  numbers.    5^ 
47. 
2d.    To  borrow  money  on  the  credit  of  the  United  States.    37. 
3d.    To  dispose  of  the  territory  of  the  United  States. 
4th.  To  dispose  of  other  property  of  the  United  States.    76. 

2.  Disbursements. 

1st.  To  pay  the  debts  of  the  United  States. 

2d.    To  provide  for  the  common  defense. 

3d.    To  provide  for  the  general  welfare  of  the  United  States. 

ART.  II.  — COMMERCE. 

To  regulate  commerce, 

1.  With  foreign  nations ; 

2.  Among  the  States  ; 

3.  With  the  Indian  tribes.    38. 

ART.  III.  — COMMERCIAL. 

1.  To  coin  money ; 

2.  To  regulate  the  value  thereof; 


Part  I.]  analysis  of  constitution.  85 

3.  To  regulate  the  value  of  foreign  coin ; 

4.  To  fix  the  standard  of  weights  and  measures.    30, 

5.  To  establish  uniform  laws  on  the  subject  of  bankruptcies 

throughout  the  United  States.    29. 

ART.  IV.— PENALTIES. 

1.  To  provide  for  the  punishment  of  counterfeiting, 

1st.  The  securities  of  the  United  States ; 

2d.    The  current  coin  of  the  United  States.    31. 

2.  To  define  piracies  and  felonies  committed  on  the  high  seas, 

and  oflfenses  against  the  law  of  nations  ; 

3.  Also  to  provide  for  punishing  these  crimes.    35* 

4.  To  declare  the  punishment  of  treason.    70. 

ART.  v.- POSTAL. 

1.  To  establish  post-offices ; 

2.  To  establish  post-roads.    3d* 

ART.  VI.  — PATENT  AND  COPY  RIGHTS. 

To  provide   for  the  progress  of  science  and   the   useful   arts  by 
granting  for  limited  times, 

1.  To  authors,  the  exclusive  right  to  their  respective  writings; 

2.  To  inventors,  the  exclusive  right  to  their  respective   dis- 

coveries.   33  • 

ART.  VII.  — WAR. 

1.  To  declare  war ; 

2.  To  grant  letters  of  marque  and  reprisal ; 

3.  To  make  rules  concerning  captures  on  land  and  water.    36* 

4.  To  raise  and  support  armies.    37. 

5.  To  provide  and  maintain  a  navy.    38. 

6.  To  make  rules  for  the  government  and  regulation  of  the  land  and 

naval  forces.    39. 

7.  To  provide,  1st.  For  organizing,  arming,  and  disciplining  the 

militia ; 
2d.  For  governing  such  part  of  the  militia  as  may  be   em- 
ployed in  the  service  of  the  United  States.    41 . 


86  ANALYSIS   OF  CIVIL  GOVERNMENT.       [Part  I. 

3d.  For  calling  forth  the  militia, 

1st.  To  execute  the  laws  of  the  Union ; 
2d.  To  suppress  insurrections  ; 
3d.  To  repel  invasions.    40. 

ART.  VIII.  — JUDICIARY. 

1.  To  constitute  tribunals  inferior  to  the  Supreme  Court.   34:. 

2.  To  determine  by  law  where  the  trials  of  crimes  shall  be   held 

which  are  not  committed  within  any  State.  68. 

3.  May  make  exceptions  and  regulations  in  cases  over  which  the 

Constitution  gives  the  Supreme  Court  appellate  jurisdiction. 
67. 

ART.  IX.  — NATURALIZATION. 

To  establish  a  uniform  rule  of  naturalization.    29. 

ART.  X.  —  TERRITORY. 

1.  Government.  —  To  make  all  needful  rules  and  regulations  respect- 

ing the  territory  of  the  United  States.    76. 

2.  Seat  of  Government.  —  To  exercise  exclusive  legislation  in  all 

cases  whatsoever  over  such  district  (not  exceeding  ten  miles 
square)  as  may,  by  cession  of  particular  States  and  the  ac- 
ceptance of  Congress,  become  the  seat  of  government  of  the 
United  States.   42. 

3.  Public  Works.  — Also  over  all  places  purchased  by  the  consent 

of  the  legislatures  of  the  States  in  which  the  same  shall  be, 
for  the  erection,  1st,  of  forts ;  2d,  magazines  ;  3d,  arsenals ; 
4th,  dockyards ;    and,  5th,  other  needful  buildings.   42. 

4.  Alienation.  —  To  dispose  of  the  territory  of  the  United  States. 

76. 

5.  New  Slates.  —  May  admit  new  States  into  the  Union.    75. 

ART.  XI.  — STATES. 

1.  Elections.  —  May  alter  the  times,  places,  and  manner  of  holding 
elections  of  senators  and  representatives  prescribed  in  the 
several  States,  by  the  legislatures  thereof,  except  as  to  the 
places  of  choosing  senators.    1^. 


Part  I.]  ANALYSIS  OF  CONSTITUTION.  87 

2.  Electors  of  President  and  Vice-President.  —  May  determine, 

1st-  The  times  when  the  States  shall  choose  their  electors  of 
President  and  Vice-President  of  the  United  States  ; 

2d.  Also  the  day  on  which  the  electors  shall  give  their  votes, 
which  day  shall  be  the  same  throughout  the  United  States. 

3.  Acts,  Records,  Judicial  Proceedings.  —  May  by  general   law 

provide  the  manner  in  which  the  acts,  records,  and  judicial 
proceedings  of  the  several  States  shall  be  proved,  and  the 
effect  thereof.    71. 

4.  Imposts  and  Duties.  —  May  revise  and  control  any  State  laws 

in  reference  to  laying  any  imposts  or  duties  on  imports  or 
exports.   S^, 

ART.  XII.  — EXECUTIVE  VACANCY. 

1.  May  by  law  provide  for  the  case  of  removal,  death,  resignation, 

or  inability,  both  of  the  President  and  Vice-President. 
2-  May  by  law  declare  what  officer  shall  then  act  as  President,  until, 

1st.  Such  disability  be  removed ;  or, 

2d.   A  President  shall  be  elected.   57, 

ART.  XIII.— APPOINTMENTS. 

May  by  law  vest  the  appointment  of  such  inferior  officers  as  they 
shall  think  proper, 

1.  In  the  President  alone ; 

2.  In  the  courts  of  law ;  or, 

3.  In  the  heads  of  departments.    01. 

ART.  XIV. -CONSTITUTIONAL  AMENDMENTS. 

1.  Shall  propose  amendments  to  the   Constitution  whenever  two- 

thirds  of  both  houses  of  Congress  shall  deem  it  necessary;  or, 

2.  On  application  of  the  legislatures  of  two-thirds  of  the  several 

States,  Congress  shall  call  a  convention  for  proposing  amend- 
ments. 

3.  May  propose  either  of  two  modes  of  ratifying  the  proposed  amend- 

ments: 


SH  ANALYSIS   OF  CIVIL  GOVERNMENT.       [Part  I. 

1st.  By  State  Conventions  ;  or, 
2d.   By  the  State  Legislatures.    78. 

ART.  XV.  — SLAVERY. 

1.  Shall  have  power  to  enforce  the  abolition  of  slavery  by  appro- 

priate legislation*    08. 

2.  While  the  foreign  slave-trade  was  lawful  (until  1808),  Congress 

had  the  power  to  impose  a  tax  or  duty  not  exceeding  ten  dol- 
lars on  each  slave  imported.    44:. 

ART.  XVI. —  GENERAL  LAW-MAKING. 

Shall  have  power  to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  powers  vested  by  the  Con- 
stitution, 

1.  In  the  government  of  the  United  States;  or, 

2.  In  any  department  thereof ;  or, 

3.  In  any  ofl&cer  thereof.    43. 

ART.  XVII.  — MEETING. 

1.  Shall  assemble  at  least  once  in  every  year ;  which  meeting  shall 

be  on  the  first  Monday  in  December,  unless, 

2.  They  shall  by  law  appoint  a  different  day.    16. 

CHAPTER    V. 

LAW-MAKING. 

ARTICLE  I.  — PROCEEDINGS. 

A  bill  may  become  a  law  through  any  one  of  the  three  following 


FIRST   PROCESS. 

1.  The  bill  shall  pass  both  houses  of  Congress. 

2.  It  shall  then  be  presented  to  the  President : 

3.  If  he  approve,  he  shall  sign  it.    24. 

SECOND    PROCESS. 

1.  The  bill  shall  pass  both  houses  of  Congress  ; 

2.  It  shall  then  be  presented  to  the  President ; 


Paet  I.]  ANALYSIS   OF  CONSTITUTION.  89 

3.  If  he  disapprove  it,  he  shall  return  it,  with  his  objections,  to  that 

house  in  which  it  originated ; 

4.  That  house  shall  enter  the  objections  at  large  on  their  journal ; 

5.  They  shall    proceed  to  reconsider  it ;   and  if,  after  such  recon- 

sideration, two-thirds  of  the  house  shall  agree  to  pass  it, 

6.  It  shall  be  sent  with  the  objections  to  the  other  house  ; 

7.  The  other  house  shall  reconsider  the  bill ; 

8.  If  approved  by  two-thirds  of  that  house,  it  shall  become  a  law ; 

9.  The  votes  of  both  houses  shall  be  determined  by  the  yeas  and 

nays  in  all  such  cases ; 

10.  The  names  of  the  persons  voting  for  and  against  the  bill  shall 

be  entered  on  the  journal  of  each  house  respectively.    24. 

THIRD   PKOCESS. 

1.  The  bill  shall  pass  both  houses  of  Congress. 

2.  It  shall  then  be  sent  to  the  President. 

3.  He  neglects  to  approve  and  sign  it. 

4.  He   also  neglects  to  return  it  to  the  house  in  which  it  origi- 

nated. 

5.  It  becomes  a  law  at  the  end  of  ten  days  (Sundays  excepted), 

unless  Congress,  by  adjournment  within  that  time,  prevents 
its  return.    24:. 

ART.  II.  — ORDERS,  RESOLUTIONS,  AND  VOTES. 

Every  order,  resolution,  or  vote,  to  which  the  concurrence  of  the 
Senate  and  House  of  Representatives  may  be  necessary  (except  on 
a  question  of  adjournment), 

1.  Shall  be  presented  to  the  President  of  the  United  States. 

2.  It  shall  be  approved  by  him  before  the  same  shall  take  effect ; 
or,  being  disapproved  by  him, 

3.  It  shall  be  passed  by  the  two  Houses  of  Congress,  by  two- 
thirds  of  each,  according  to  the  rules  and  limitations  pre- 
scribed in  case  of  a  bill.   25, 


9ft  ANALYSIS  OF  CIVIL  GOVERNMENT.       [Part  I. 

CHAPTER  VI.  -^ 

PROHIBITIONS   ON   THE   UNITED    STATES. 
ARTICLE  I.  — HABEAS  CORPUS. 

The  privilege  of    the  writ  of  habeas  corpus  shall  not  be  sus- 
pended unless  when  the  public  safety  may  require  it, 

1.  In  cases  of  rebellion ; 

2.  In  cases  of  invasion.    45. 

ART.  II.  — DIRECT  TAXES. 

No  capitation  or  other  direct  tax  shall  be  laid  unless  in  proportion 
to  the  census.   5,  47. 

ART.   III.  — EXPORT-DUTIES. 

No  tax  or  duties  shall  be  laid  on  articles  exported  from  any 
State.    48. 

ART.  IV.  — INTER-STATE  COMMERCE.  ^     g 

1.  No  preference  shall  be  given,  by  any  regulation  of  commerce  or 

revenue,  to  the  ports  of  one  State  over  another. 

2.  Nor   shall  vessels  bound  to  or  from  one  State   be  obliged  to 

enter,  clear,  or  pay  duties,  in  another.    48. 

ART.  v.  — PUBLIC  MONEY. 

1.  No  money  shall  be  drawn  from  the  treasury  but  in  consequence 
-  , .    of  appropriations  made  by  law. 

2.  A  regular  statement  and  account  of  the  receipts  and  expenditures 

of  all  public  money  shall  be  published  from  time  to  time. 
49. 

3.  No  appropriation  of  money  to  raise  and  support  armies  shall  be 

for  a  longer  term  than  two  years.    37. 

ART.  VI. -NOBILITY. 

No  title  of  nobility  shall  be  granted  by  the  United  States.    50. 

ART.  Vn.  — PENALTIES. 

1.  No  bill  of  attainder  shall  be  passed. 

2.  No  ex-'post-facto  law  shall  be  passed.    46. 


Part  I.]  ANALYSIS  OF  CONSTITUTION.  91 

3.  No  attainder  of  treason  shall  work, 
1st.  Corruption  of  blood  ;  nor, 
2d.  Forfeiture  except  during  the  life  of  the  person  attainted. 

ro. 

ART.  VIII.  —  FOREIGN  SLAVE-TRADE. 

The  importation  of  slaves  was  not  to  be  prohibited, 

1.  By  Congress,  prior  to  1808,  44:  ^   nor, 

2.  By  any  amendment  to  the  Constitution  prior  to  that  time. 

78. 

ART.  IX.  — REPUDIATION. 

1.  Nothing  in  the  Constitution  shall  be  construed  so  as  to  prejudice 

any  claim, 

1st.  Of  the  United  States ;  nor, 

2d.  Of  any  particular  State.     76.      (See  appendix    to 
Analysis  E.) 

2.  All  debts,  contracts,  and  engagements,  entered  into  before  the 

adoption  of  the  Constitution,  shall  be  as  valid  against  the 
United  States  under  the  Constitution  as  under  the  Confed- 
eration.   79. 

ART.  X.  — FREEDOM. 

1.  Civil.  —  1st.  Congress  shall  make  no  law  abridging, 

1st.  The  freedom  of  speech  ;  nor, 
2d.  The  freedom  of  the  press ;  nor, 
3d.  The  right  of  the  people  peaceably  to  assemble  and 
petition  the  government  for  a  redress  of  grievances. 
83. 
2d.  The  right  of  the  people  to  keep   and   bear   arms  shall 
not  be  infringed.    84:. 

2.  Religious.  —  1st.  No  religious  test  shall  ever  be  required  as  a 

qualification  to  any  public  office  or  trust  under  the  United 

States.    81. 
2d.  Congress  shall  make  no  law, 

1st.  Respecting  an  establishment  of  religion  ;  or, 
2d.  Prohibiting  the  free  exercise  thereof.    83. 


92  ANALYSIS  OF  CIVIL  GOVERNMENT.       [Part  I. 

CHAPTER  VII. 

RELATING  TO   OFFICERS. 

ART.   I.  — INELIGIBILITY. 

1.  Unitedr States  Officers.  —  No  person  holding  any  office  of  trast 

or  profit  under  the  United  States  shall, 

1st.  Be  appointed  an  elector  of  President  and  Vice-Presi- 
dent; nor, 

2d.  Be  a  member  of  either  house  of  Congress  during  his 
continuance  in  office.  23.  (See  appendix  to  Analy- 
sis D.) 

2.  Congressmen.  —  No  senator  or  representative  shall, 

1st.  Be  appointed  an  elector  of  President  and  Vice-Presi- 
dent, 54: ;  nor, 
2d.  During  the  time  for  which  lie  was  elected,  he  appointed 
to  any  civil  office  under  the  United  States, 

1st.  Which  shall  have  been  created  during  such  time ;  nor, 
2d.  The  emoluments  of  which  have  been  increased  dur- 
ing such  time.    S3. 

ART.  II.  — FOREIGN  PATRONAGE. 

No  person  holding  any  office  under  the  United  States  shall,  with- 
out the  consent  of  Congress,  accept  of  any  present,  emolument, 
office,  or  title,  of  any  kind  whatever,  from  any  king,  prince,  or 
foreign  State.    50. 

ART.  in.  — THE  PRESIDENT. 

1.  The  compensation  for  the  services  of  the  President  of  the  United 

States  shall  neither  be   increased  nor  diminished  during  the 
period  for  which  he  shall  have  been  elected. 

2.  He  shall  not  receive  within  that  period  any  other  emolument 
£joi . '  from  the  United  States  or  any  State .     58. 

ART.   IV. —IMPEACHMENT. 

1.   The   President,    Vice-President,    and   all   civil   officers   of  the 
.      United  States,  shall  be  removed  from  office  on  impeachment 


Part  I.]  ANALYSIS   OF  CONSTITUTION.  93 

for,  and  conviction  of,  treason,  bribery,  or  other  high  crimes 
or  misdemeanors.     G4. 

2.  Judgment  in  cases   of  impeachment   shall  not  extend  further 

than, 

1st.  To  removal  from  oflfice ;  and, 

2d.    Disqualification  to  hold  and  enjoy  any  office  of  honor, 
trust,  or  profit,  under  the  United  States. 

3.  The  party  convicted  shall  nevertheless  be  liable  and  subject  to 

indictment,  trial,  judgment,  and  punishment,  according  to  law. 
14. 

CHAPTER  Vin. 

EIGHTS    OF    STATES. 

ARTICLE  1.  —  REPRESENTATION. 

1.  Each  State  shall  have  at  least  one  representative.     5, 

2.  No  amendment  shall  be  made  to  the  Constitution,   depriving 

any  State,  without  its  consent,  of  its  equal  sujQfrage  in  the 
Senate.     78. 

ART.  II.  —  PRIVILEGES  OF  CITIZENSHIP. 

The  citizens  in  each  State  shall  be  entitled  to  all  the  privileges 
and  immunities  of  citizens  of  the  several  States.  72,  (See 
appendix  to  Analysis  A.) 

ART.  III.— STATE  AMITY. 

Full  faith  and  credit  shall  be  given  in  each  State  to  the  acts, 
records,  and  judicial  proceedings,  of  every  other  State.     71, 

ART.  IV.  — NEW  STATES. 

1.  No  new  State  shall  be  formed  or  erected  within  the  jurisdiction 

of  another  State. 

2.  Nor  shall  any  new  State  be  formed  by  the  junction  of  two  or 

more  States,  or  parts  of  States,  without  the  consent  of  the  legis- 
latures of  the  States  concerned,  as  well  as  the  Congress.   7S, 


H  AJS^ALYSIS  OF  CIVIL  GOVERNMENT.       [Part  I. 

ART.  v.  — ELECTIONS. 

The  times,  places,  and  manner  of  holding  elections  of  senators  and 
representatives  shall  be  prescribed  in  each  State  by  the  legis- 
lature thereof,  subject  to  the  revision  of  Congress,  except  as  to 
the  places  of  choosing  senators.     15, 

ART.  VI.  —  MILITIA-OFFICERS. 

1.  The  appointment  of  the  militia-officers  is  reserved  to  the  States 

respectively. 

2.  Also  the  training  of  the  militia  according  to  the  discipline  pre- 

scribed by  Congress.     41  • 

ART.  VII.  — FEDERAL  PROTECTION. 

1.  The  United  States  shall  guarantee  to  every  State  in  the  Union  a 

republican  form  of  government ; 

2.  Shall  protect  them  against  invasion  ; 

3.  Also  against  domestic  violence, 

1st.  On  the  application  of  the  legislature  of  the  State ;  or, 
-     2d.  On  application  of  the  State  Executive,  when  the  legislar 
ture  cannot  be  convened.     77. 

ART.  VIII.  —  FUGITIVES. 

1.  From  Justice.  —  A  person  charged  in  any  State  with  treason, 

felony,  or  other  crime,  who  shall  flee  from  justice,  and  be 
found  in  another  State,  shall,  on  demand  of  the  executive 
authority  of  the  State  from  which  he  fled,  be  dehvered  up, 
to  be  removed  to  the  State  having  jurisdiction  of  the  crime. 
73. 

2.  From  Service.  —  No  person  held  to  service  or  labor  in  one  State 

under  the  laws  thereof,  escaping  into  another,  shall,  in  conse- 
quence of  any  law  or  regulation  therein,  be  discharged  from 
such  service  or  labor,  but  shall  be  delivered  up  on  claim  of  the 
'.^ ;  party  to  whom  such  service  or  labor  may  be  due.  74.  (This 
Uv  clause  has  been  superseded  by  the  13th  article  of  Amend- 
ments to  the  Constitution.) 


Part  I.]  ANALYSIS   OF  CONSTITUTION.  95 

ART.  IX.  — RESERVATIONS. 

1.  The  powers  not  delegated  to  the  United  States  by  the  Constitu- 

tion, nor  prohibited  by  it  to  the  States,  are  reserved  to  the 
States  respectively,  or  to  the  people.     OS. 

2.  The  enumeration  in  the  Constitution  of  certain  rights   shall  not 

be  construed  to  deny  or  disparage  others  retained  by  the 
people.     91* 

CHAPTER  IX. 

STATE    SUBORDINATION. 

ARTICLE  I. -ORIGIN  OF  STATE  OBLIGATIONS. 

1.  Constitution.  —  The   ratification   of   the    conventions   of  nine 

States  was  declared  to  be  suflScient  for  the  establishment  of  the 
Constitution  between  the  States  so  ratifying  the  same.    8S« 

2.  Amendments.  —  Whenever  amendments  to  the  Constitution  are 

proposed  in  accordance  with  the  terms  of  that  instrument, 
they  become  to  all  intents  and  purposes  a  part  of  it, 

1st.  When  ratified  by  the  conventions  of  three-fourths  of 
the  several  States ;  or, 

2d.  By  the  legislatures  of  three-fourths  thereof.    78. 

ART.  II.  —  SUPREMACY  OF  UNITED-STATES  AUTHORITY. 

1.  The  supreme  law  of  the  land  shall  be, 

1st.  The  Constitution  of  the  United  States ; 
2d.  All  laws  made  in  pursuance  thereof; 
3d.  All  treaties  made,  or  which  shall  be  made,  under  the 
authority  of  the  United  States. 

2.  The  judges  in  every  State  shall  be  bound  thereby,  notwithstand- 

ing any  thing  in  the  constitution  or  laws  of-  any  State  to  the 
contrary.    80. 

ART.  in.  — OFFICIAL  OATH. 

1.  The  members  of  the  several  State  legislatures  shall  be  bound  by 
oath  or  affirmation  to  support  the  Constitution  of  the  United 
States. 


M  ANALYSIS   OF  CIVIL  GOVEBNMENT.       [Part  I. 

2.  All  executive  officers  of  the  several  States  shall  be  bound  in  like 

manner ; 

3.  Also  all  judicial  officers  of  the  several  States.    81. 


CHAPTER   X. 

STATE  PROHIBITIONS. 

ARTICLE  I.  — STATE  RELATIONS. 

1.  No  State  shall  enter  into  any  treaty,  alliance,  or  confederation 

(51),  nor, 

2.  Into  any  agreement  or  compact  with  another  State,  or  with  a 

foreign  power,  without  the  consent  of  Congress.    S2, 

ART.  II.  — COMMERCIAL. 

1.  No  State  shall  coin  money;  nor, 

2.  Emit  bills  of  credit ;  nor, 

3.  Make  any  thing  but  gold  and  silver  coin  a  tender  in  payment  of 

debts;  nor, 

4.  Pass  any  law  impairing  the  obligation  of  contracts.    5\, 

ART.  Ill— WAR. 

1.  No  State  shall  grant  letters  of  marque  and  reprisal  (51) ;  nor, 

2.  Without  the  consent  of  Congress,  keep  troops  or  ships  of  war 

in  time  of  peace ;  nor, 

3.  Engage  in  war,  unless, 

1st.  Actually  invaded  ;  or, 

2d.  In  such  imminent  danger  as  will  not  admit  of  delay.  Sfi, 

ART.  IV.  — PENALTIES. 

1.  No  State  shall  pass  any  bill  of  attainder;  nor, 

2.  Any  ex-post  facto  hw.     SI. 

ART.  v.  — NOBILITY. 

No  State  shall  grant  any  title  of  nobility.     «ll. 


Part  I.]  ANALYSIS  OF  CONSTITUTION.  97 

ART.  VI.  — DUTIES. 

1.  No  State  shall,  without  the  consent  of  Congress, 

1st.  Lay  any  duty  of  tonnage  ;  nor, 

2d.  Any  imposts  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  its  inspec- 
tion-laws. 

2.  The  net  produce  of  all  duties  and  imposts  laid  by  any  State  on 

imports  or  exports  shall  be  for  the  use  of  the  treasury  of  the 
United  States.    52, 

ART  VII.  — SLAVERY. 

Neither  slavery  nor  involuntary  servitude,  except  as  a  punishment 
for  crune  whereof  the  party  shall  have  been  duly  convicted,  shall 
exist, 

1.  Within  the  limits  of  the  United  States ;  nor, 

2.  In  any  place  subject  to  their  jurisdiction.   07.     (See  ap- 

pendix to  Analysis  B.) 


CHAPTER  XI. 

PERSONAL  RIGHTS. 

ARTICLE   I.  — DOMICILE. 

1.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house 

without  the  consent  of  the  owner ;  nor, 

2.  In  time  of  war,  but  in  a  manner  to  be  prescribed  by  law.   85. 

ART.  11. -SECURITY. 

1.  The  right  of  the  people  to  be  secure  in  their  persons,  houses, 

papers,  and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated. 

2.  No  warrant  shall  issue  but  upon  probable  cause,  supported  by 

oath  or  affirmation, 

1st.  Particularly  describing  the  place  to  be  searched ;  and, 
2d.  The  person  or  things  to  be  seized.    80. 


98  AlTALiYSIS    OF   CIVIL   GOVERNMENT.       [Part  I. 

ART.    III. —JUDICIAL. 

1.  No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  infa- 

mous crime,  unless  on  a  presentment  or  indictment  of  a  grand 
jury,  except  in  cases  arising, 

1st.  In  the  land  or  naval  forces ;  or, 

2d.  In  the  militia  when  in  actual  service,  in  time  of  war 
or  public  danger. 

2.  No  person  shall  be  subject  for  the  same  offense  to  be  twice  put 

in  jeopardy  of  life  and  limb. 

3.  No  person  shall  be  deprived  of  life,  liberty,  or  property,  without 

due  process  of  law. 

4.  Private  property  shall  not  be  taken  for  public  use  without  just 

compensation.    8^. 

ART.  IV.  — CRIMINAL  ACTIONS. 

In  all  criminal  prosecutions, 

1.  Accusation.  —  The  accused  shall  be  informed  of  the  nature  and 

cause  of  the  accusation. 

2.  Trial  hy  Jury. — He  shall  enjoy  the  right  to  a   speedy  and 

public  trial. 

1st.  By  an  impartial  jury  ; 

2d.  The  jury  shall  be  of  the  State  and  district  wherein  the 

crime  shall  have  been  committed. 
3d.    The  district  shall  have  been  previously  ascertained  by 
law.    8^. 

3.  Witnesses.  —  1st.  No  one  shall  be  compelled  to  be  a  witness 

against  himself.    87. 
2d.  He  shall  have  compulsory  process  for  obtaining  witnesses 

in  his  favor. 
3d.  He  shall  be  confronted  by  the  witnesses  against  him.   88. 

4.  Counsel.  —  He   shall  have  the   assistance   of  counsel  for  his 

defens6.    88. 

5.  Bail.  —  Excessive  bail  shall  not  be  required. 

6.  Fines.  —  Excessive  fines  shall  not  be  imposed. 

7.  Punishments.  —  Cruel  and  unusual  punishments  shall  not  be 

inflicted.    90.  ........  .^-^k  ^m...  ; 


Part  I.]  ANALYSIS  OF  CONSTITUTION.  99 

ART.  v.  — CIVIL  ACTIONS. 

In  all  cases  at  common  law,  wherein  the  value  in  controversy  shall 
exceed  twenty  dollars, 

1.  The  right  of  trial  by  jury  shall  be  preserved  ; 

2.  No  fact  tried  by  a  jury  shall  be  otherwise  re-examined,  in 

any  court  of  the  United  States,  than  according  to  the 
rules  of  the  common  law.    89. 

ART.  VI.  — TREASON. 

1.  Definition.  — Treason  against  the  United  States  shall  consist, 

1st.  In  levying  war  against  them ;  or, 

2d.  In  adhering  to  their  enemies,  giving  them  aid  and  comfort. 

2.  Conviction.  —  No  person  shall  be  convicted  of  treason,  unless, 

1st.  On  the  testimony  of  two  witnesses  to  the  same  overt  act;  or, 
2d.  On  confession  in  open  court.    69. 

ART.  VII.  — OFFICIAL  IMMUNITIES. 

Freedom. 

1.  From  Arrest.  —  Members  of  Congress  shall,  in  all  cases  ex- 

cept treason,  felony,  and  breach  of  the  peace,  be  privi- 
leged from  arrest, 

1st.  During  theu-  attendance  at  their  respective  houses; 
and, 

2d.  While  going  to  and  returning  from  the  same. 

2.  Of  Speech.  —  For  any  speech  or  debate  in  either  house,  they 

shall  not  be  questioned  in  any  other  place.    SI. 


CHAPTER  XII. 

EXECUTIVE   DEPARTMENT. 

ART.  I.  — IN  WHOM  VESTED. 

In  a  President  of  the  United  States  of  America.    «I3. 

ART.  II — TERM. 

He  shall  hold  his  o£5c6  during  the  term  of  four  years.  ^3* 


100  ANALYSIS   OF  CIVIL  GOVERNMENT.       [Part  I. 

ART.   III.  — ELIGIBILITY. 

1.  He  must  have  attained  to  the  age  of  thirty-five  years. 

2.  Must  have  resided  within  the  United  States  fourteen  years. 
8.  He  shall  be  a  natural-born  citizen ;  or, 

4.  A  citizen  of  the  United  States  at  the  time  of  the  adoption  of  the 
Constitution.    «>G« 

ART.  IV.— ELECTION. 

1.  Electors. 

1st.  Each  State  shall  appoint  electors  of  President  and  Vice- 
President  in  such  manner  as  the  legislature  thereof  may 
direct. 
2d.  The  number  of  electors  shall  equal  the  number  of  sena- 
,  tors  and  representatives  to  which  the  State  may  be  entitled 

in  Congress.    5^, 
%  Proceedings  of  Electors. 

1st.  They  shall  meet  in  their  respective  States ; 
2d.  They  shall  vote  by  ballot  for  President  and  Vice-President 
of  the  United  States,  at  least  one  of  whom  shall  not  be  an 
inhabitant  of  the  same  State  with  themselves. 
3d.  They  shall  name  in  their  ballots, 

1st.  The  person  voted  for  as  President ;  and, 
2d.    The  person  voted  for  as  Vice-President. 
4th.  They  shall  make  distinct  lists  of  all  persons  voted  for, 
1st.  As  President ; 

2d.  As  Vice-President,  and  the  number  of  votes  for 
each. 
6th.  The  electors  shall  sign  and  certify  the  lists. 
6th.  They  shall  transmit  the  lists  sealed  to  the  seat  of  govern- 
ment of  the  United  States. 
7th.  The  lists  shall  be  directed  to  the  President  of  the  Sen- 
ate.   94. 

3.  Proceedings  in  Congress. 

1st.  The  President  of  the  Senate  shall  open  all  the  certifi- 
cates in  the  presence  of  both  houses  of  Congress. 
2d.    The  votes  shall  then  be  counted. 


Part  I.]  ANALYSIS    OF    CONSTITUTION.  101 

3d.    The  person  having  the  'grpH*e?t'  number   of.  votes   for 
President  shall  be  (declared  eiecte'd)' President  if  such  num- 
ber be  a  majority  of  the;'wtoro  nun^bsrof 'eJebtiorH  Appoint- 
ed.  94.  "•'  '''''"  '  "     '"'  '  ^"'  '' 
4.  House  of  Representatives. 

1st.  If  no  person  have  such  majority,  then  the  House  of 
Representatives  shall  choose  immediately  the  President. 

2d.  He  shall  be  chosen  from  the  persons  having  the  highest 
numbers,  not  exceeding  three,  on  the  list  of  persons  voted 
for  as  President. 

3d.  The  election  in  such  case  shall  be  by  ballot. 

4th.  The  vote  shall  be  taken  by  States. 

6th.  The  representation  from  each  State  shall  have  one  vote. 

6th.  A  quoi-um  for  this  purpose  shall  consist  of  a  member 
or  members  from  two-thirds  of  the  States. 

7th.  A  majority  of  all  the  States  shall  be  necessary  to  a 
choice.   94:. 

ART.   V.  —  OATH   OF  OFFICE. 

Before  he  enter  on  the  execution  of  his  office,  he  shall  swear  or 
affirm, 

1.  That  he  will  faithfully  execute  the  office  of  President  of  the 

United  States ;  and, 

2.  That  he  will,  to  the  best  of  his  ability,  preserve,  protect, 

and  defend  the  Constitution  of  the  United  States.    ^9. 

ART.  VI.  —  HOW  REMOVABLE. 

He  shall  be  removed  from  office  on  impeachment  for,  and  convic- 
tion of,  treason,  bribery.,  and  other  high  crimes  and  misdemean- 
ors.- 64. 

ART.  VII.  —  SALARY. 

Ha  shall  receive  for  his  services,  at  stated  times,  a  compensation 
which  shall  neither  be  increased  nor  diminished  during  the  term 
for  which  he  shall  have  been  elected.    58. 


102 


ANALYSIS  OF  CIVIL  GOVERNMENT.        [Part  I. 


•.    ';     -    *:^r^T\YIII..- POTTERS  AND  DUTIES. 

1.  MlUidry:  /  ^  '.'  '    :''•'■' 

1st.  He  is  commander-in-chief  of  the  anny  and  navy  of  the 

United  States. 
2d.    Also  of  the  militia  of  the  several  States  when  called  into 

the  actual  service  of  the  United  States.    60. 

2.  Civil 

1st.  Departments.  —  He   may  require   the  written   opinion 
of  the  principal  officers  in  each  of  the  executive  depart- 
ments, on  any  subject  relating  to  the  duties  of  their  respec- 
tive offices. 
2d.   Reprieves  and  Pardons.  —  He  shall  have  power  to  grant 
reprieves  and  pardons  for  offenses  against  the  United  States, 
except  in  cases  of  impeachment.    60. 
3d.    Treaties.  —  He  shall  have  power,  by  and  with  the  advice 
and   consent  of   the    Senate,  two-thirds   of  the  members 
present  concurring,  to  make  treaties.    61. 
4th.  Appointments.  —  He  shall  nominate,  and,  by  and  with 
the  advice  and  consent  of  the  Senate,  appoint, 

1st.   Ambassadors,  other  public  ministers,  and  consuls ; 
2d.    Judges  of  the  Supreme  Court ; 
3d.    All  other  officers  of  the  United  States  whose  ap- 
pointments are  not  otherwise  provided  for  in  the  Con- 
stitution, and  which  shall  be  established  by  law.    61. 
5th.  Vacancies.  —  He  shall  have  power  to  fill  all  vacancies 
that  may  happen  during  the  recess  of  the  Senate,  by  grant- 
ing commissions  which  shall  expire  at  the  end  of  their  next 
session.    62. 
6th.   Ifessages.  —  1st.  He  shall  from  time  to  time  give  Con- 
gress information  of  the  state  of  the  Union ;  and, 

2d.    Shall  recommend  to  their  consideration  such  meas- 
ures as  ho  shall  deem  necessary  and  expedient.    63* 
7th.    Congress.  —  1st.   On    extraordinary  occasions,   he  may 
convene  either  or  both  houses  of  Congress. 


Part  I.]  ANALYSIS   OF  CONSTITUTION.  103 

2d.  In  cases  of  disagreement  between  them  with  respect  to 
the  time  of  adjournment,  he  may  adjourn  them  to  such 
time  as  he  shall  think  proper.    63. 
.  8th.  Reception.  —  He  shall  receive  ambassadors  and   other 

pubUc  ministers.    63. 
9th.  Executor  of  the  Laws.  —  He  shall  take  care  that  the 

laws  are  faithfully  executed.    63. 
10th.    Commissions.  —  He  shall  commission   all  officers   of 
the  United  States.   63. 


CHAPTER    XIII. 

VICE-PRESroENT. 
ARTICLE  I.  —  ELIGIBILITY. 

No  parson  constitutionally  ineligible  to  the  office  of  President  shall 
be  eligible  to  that  of  Vice-President  of  the  United  States.    06. 

ART.  IL  — ELECTION. 

1.  In  Congress.  — The  person  having  the  greatest  number  of  votes 

for  Vice-President  shall  be  the  Vice-President  if  such 
number  be  a  majority  of  all  the  electors  appointed.    95. 

2.  In  Senate,  —  1st.    If  no  person  have  a  majority  as  Vice-Presi- 

dent, then,  from  the  two  highest  numbers  on  the  list  of 
persons  voted  for  as  such,  the  Senate  shall  choose  a  Vice- 
President. 

2d.  A  quorum  for  this  purpose  shall  consist  of  two-thirds  of 
the  whole  number  of  senators. 

8d.  A  majority  of  the  whole  number  of  senators  shall  bo 
necessary  to  a  choice.    05. 

ART.  III.  —  OATH  OF  OFFICE. 

He  shall  be  bound  by  oath  or  affirmation  to  support  the  Constitution 
of  the  United  States.    81. 


104  ANALYSIS  OF  CIVIL  GOVERNMENT.       [Part  I. 

ART.   IV.  — TERM. 

He  shall  hold  his  office  during  the  term  of  four  years.    ^3. 

ART.  V.  —POWERS  AND  DUTIES. 

1  He  shall  be  President  of  the  Senate,  but  have  no  vote  unless 
they  be  equally  divided.     11, 

2.  In  case  of  the  removal  of  the  President  from  office,  or  of  his 

death,  resignation,  or  inability  to  discharge  the  powers  and 
duties  of  said  office,  the  same  shall  devolve  on  the  Vice-Pres- 
ident.    57, 

3.  If  the  House  of  Representatives  shall  not  choose  a  President 

whenever  the  right  of  choice  shall  devolve  on  them,  before  the 
fourth  day  of  March  next  following,  the  Vice-President  shall 
act  as  President.     04. 


CHAPTER  XIV. 

JUDICIAL   DEPARTMENT. 

ART  I.  — WHERE  VESTED. 

The  judicial  power  of  the  United  States  shall  be  vested, 

1.  In  one  Supreme  Court;  and 

2.  In  such  inferior  courts  as  Congress  may  from  time  to  time 

ordain  and  establish.    6^. 

ART.  II.— JUDGES. 

1.  How  appointed. — By  the  President  of  the  United  States,  by 

and  with  the  advice  and  consent  of  the  Senate.   61. 

2.  Oath  of  Office.  —  The  judges  shall  swear  or  affirm  that  they 

will  support  the  Constitution  of  the  United  States.    81. 

3.  Tenure  of  Office.  —  The  judges  of  the  Supreme   and   Inferior 

Courts  shall  hold  their  offices  during  good  behavior.    05. 

4.  How  removable.  —  They  shall  be  removed  on  impoachment  for, 

and  conviction  of,  treason,  bribery,  and  other  high  crimes  and 
misdemeanors.    64. 


Part  I.]  ANALYSIS   OF  CONSTITUTION.  105 

5.  Salary.  —  The  judges  shall,  at  stated  times,  receive  for  their  ser- 
vices a  compensation,  which  shall  not  be  diminished  duiing 
their  continuance  in  office.    0«S. 

ART.  III.  — JURISDICTION. 

1.  Limitation.  —  The  judicial  power  of  the  United  States  shall 

extend  to  all  cases  of  law  and  equity  arising, 

1st.  Under  the  Constitution  of  the  United  States ; 
2d.    Under  the  laws  of  the  United  States  ;  and, 
3d.   To  treaties  made,  or  which  shall  be  made,  under  their 
authority.    60. 

2.  Original.  —  The  Supreme  Court  shall  have  original  jurisdiction, 

1st.  In  all  cases  affecting  ambassadors ; 

2d.    Other  pubhc  ministers  and  consuls  ; 

8d.   In  controversies  between  two  or  more  States ; 

4th.  Between  a  State  and  citizens  of  another  State ; 

5th.  Between  a  State  or  citizens  thereof  and  foreign  states, 

citizens,  or  subjects.    66,  67. 
6th.  But  the  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any.  suit  in  law  or  equity  commenced 
or  prosecuted, 

1st.  Against  one  of  the   United  States  by  citizens  of 

another  State ;  or, 
2d.    By  citizens  or  subjects  of  a  foreign  state.    03. 

3.  Appellate.  —  The  Supreme  Court  shall  have  appellate  jurisdic- 

tion, both  as  to  law  and  fact,  with  such  exceptions  and  under 
such  regulations  as  the  Congress  shall  make, 

1st.  In  all  cases  of  admiralty  and  maritime  jurisdiction ; 
2d.  In  controversies  in  which  the  United  States  shall  be  a 

party ; 
3d.  Between  citizens  of  different  States ;  and, 
4th.   Between  citizens  of  the  same   State  claiming  lands 
under  grants  of  different  States.    66,  67. 


106  ANALYSIS   OF  CIVIL  GOVERNMENT.       [Part  I. 


APPENDIX    TO    THE    ANALYSIS. 

Note.  — This  work  was  prepared  for  the  press  before  Article  14  of  the 
Amendments  had  become  a  part  of  the  Constitution  of  the  United  States. 
The  analysis  of  that  article  is,  therefore,  inserted  here. 

A. 

CITIZENSHIP. 

All  persons  bom  or  naturalized  in  the  United  States,  and  subject 
to  the  jurisdiction  thereof,  are  citizens  of  the  United  States  and  of 
the  State  wherein  they  reside.   90. 

B. 

STATE  PROHIBITIONS. 

CITIZENSHIP. 

1.  No  State  shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States ; 

2.  Nor  shall  any  State  deprive  any  person  of  life,  liberty,  or  prop- 
erty, without  due  process  of  law; 

3.  Nor  deny  to  any  person  within  its  jurisdiction  the  equal  pro- 
tection of  the  laws.  99* 

C. 

REPRESENTATION. 
1.   HOW    APPORTIONED. 

Representatives  shall  be  apportioned  among  the  several  States 
according  to  their  respective  numbers ;  counting  the  whole  number 
of  persons  in  each  State,  excluding  Indians  not  taxed.    100. 

2.   HOW    APPORTIONMENT    REDUCED. 

By  a  denial  of  any  State  to  any  of  its  male  inhabitants,  being 
citizens  of  the  United  States,  twenty-one  years  of  age,  or  in  anyway 


Part  I.]  APPENDIX  TO  ANALYSIS.  107 

abridging,  except  for  participation  in  rebellion,  or  other  crime,  the 
right  to  vote  at  any  election, 

1.  For  the  choice  of  electors   for  President  and  Vice-President 

of  the  United  States; 

2.  For  representatives  in  Congress ; 

3.  For  State  officers,  judicial  and  executive ;  or, 

4.  For  members  of  the  State  legislature.    100. 

3.    RATIO    OF    REDUCTION. 

In  all  such  cases,  the  basis  of  representation  shall  be  reduced  in 
the  proportion  which  the  disfranchised  male  citizens  shall  bear  to  the 
whole  number  of  male  citizens  in  such  State  of  the  age  of  twenty- 
one  years.    100. 

D. 

INELIGIBILITY  TO  OFFICE. 

Any  person  having  once  taken  an  oath  to  support  the  Constitution 
of  the  United  States,  either  as, 

1.  A  member  of  Congress  ;  or, 

2.  An  officer  of  the  United  States ;  or, 

3.  As  a  member  of  any  State  legislature ;  or, 

4.  As  an  executive  or  judicial  officer  of  any  State,  and  having 
engaged  in  insurrection  or  rebellion  against  the  United  States,  or 
given  aid  or  comfort  to  their  enemies,  is  ineligible  thereafter ;  as, 

1.  A  member  of  either  hi^use  of  Congress ; 

2.  Elector  of  President  and  Vice-President  of  the  United  States ; 
or, 

3.  As  an  officer  of  any  kind,  civil  or  mihtary, 

1st.  Under  the  United  States  ;  or, 

2d.  Under  any  State,  unless  Congress  shall,  by  vote  of  two- 
thirds  of  each  house,  remove  the  disability.    101. 

E.    ' 

REPUDIATION. 

1.  Forbidden.  —  The  vahdity  of  the  public   debt  of  the  United 
States  authorized  by  law,  including  debts  incurred  for  pay- 


108  ANALYSIS  OF   CIVIL  GOVERNMENT.       [Part  l. 

ment  of  pensions  and  bounties  for  services  in  suppressing 
insurrection  and  rebellion,  shall  not  be  questioned. 
2.  Enjoined.  —  Neither  the  United  States  nor  any  State  shall  as- 
sume or  pay  any  debt  or  obligation  incurred, 

1st.  In  aid  of  insurrection  or  rebellion  against  the  United 

States;  or, 
2d.  Any  claim  for  the  loss  or  emancipation  of  any  slave. 
3d.  All   such   debts,  obligations,  or  claims,  shall  be  held 
illegal  and  void.  103. 


PAET    11. 


ANNOTATIONS   ON  THE  ANALYSIS 


CONSTITUTION   OF  THE   UNITED  STATES. 


PREAMBLE. 

We,  the  people  of  the  United  States, 

1.  In  order  to  form  a  more  perfect  union; 

2.  Establish  justice  ; 

3.  Insure  domestic  tranquillity  ; 

4.  Provide  for  the  com^mon  defense  / 
6.  Promote  the  general  welfare ;  and, 

6.  Secure  the  blessings  of  liberty  to  ourselves  and  our  pos- 
terity, do  ordain  and  establish  this  Constitution  for 
the  United  States  of  America,  1, 

§1. 

1st.  The  Preamble  is  an  exposition  of  the  objects  and  purposes  of 
the  Constitution.  Unlike  the  Articles  of  Confederation,  which  were 
an  agreement  or  compact  between  the  States  as  such,  the  Constitu- 
tion is  a  compact  of  the  People.  The  first  line  of  the  former  docu- 
ment shows  that  the  bargain  is  between  the  States  :  on  the  contrary, 
the  first  line  of  the  Preamble  to  the  Constitution  shows  that  the 
agreement  is  by  the  People. 

2d.  Observe,  the  Preamble  begins  with,  "  We,  the  People ;  "  and 
what  they  purposed  to  do  was  for  themselves  and   their  posterity. 

109 


110  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 

States  can  not  properly  be  said  to  have  posterity.  The  Articles  of 
Confederation  were  never  submitted  to  the  people  for  their  approval 
in  any  such  direct  manner  as  the  Constitution  was. 

3d.  The  first  object  expressed  in  the  Preamble  is,  to  form  a  more 
perfect  union;  that  is,  a  more  perfect  union  than  had  existed  under 
the  Confederation.  The  govermnent,  under  the  former  system,  had 
been  found  by  experience  to  be  inadequate  to  the  wants  of  the 
people.  The  Union  was  so  imperfect  as  to  be  almost  unworthy  of 
the  name. 

4th.  Its  imperfections  as  a  national  government  appeared  from  the 
collision  of  interests  between  the  States ;  their  commercial  aggres- 
sions upon  each  other  ;  the  laws  of  retaliation  for  real  or  imaginary 
injuries,  which  they  did  not  hesitate  tt)  pass ;  the  dangers  from  for- 
eign interference,  as  well  as  the  actual  advantage  which  had  often 
been  taken  of  our  weakness,  —  all  of  which  threatened  the  dismem- 
berment of  the  Union  under  the  Confederation. 

They  demonstrated  the  necessity  of  a  more  powerful  federal  gov- 
ernment, and  a  more  perfect  union  of  the  people  of  the  United 
States. 

§2. 

1st.  A  government  having  no  judiciary  that  commands  the  respect 
of  the  people  is  wanting  in  one  of  the  essential  elements  of  stability. 
To  establish  justice  was,  therefore,  the  second  object  to  be  secured 
by  the  new  Constitution. 

2d.  Under  the  Confederation,  there  was  nothing  that  could  be 
called  a  national  judiciary.  The  State  legislatures  were  often  led  to 
pass  laws  favoring  their  own  immediate  and  respective  localities,  and 
State  courts  did  not  hesitate  to  disregard  the  decisions  of  co-ordinate 
tribunals. 

8d.  Treaties  formed  between  the  Confederacy  and  foreign  nations 
were  recklessly  disregarded  by  the  State  legislatures  as  well  as  by 
the  State  courts.  In  several  instances,  this  open  disregard  of  the 
plighted  faith  of  the  nation  threatened  to  involve  the  whole  country 
in  war. 

4th.  Laws  were  passed  by  the  State  legislatures,  in  many  instan- 
ces, in  open  defiance  of  the  sacredness  of  private  contracts  between 


Part  II.]  KOTES   ON  PREAMBLE.  Ill 

man  and  man.  Remedies  for  the  recovery  of  debts  were  suspended. 
Debtors  were  authorized  to  tender  any  sort  of  property,  even  though 
noarly  worthless,  in  payment  of  debts  that  had  been  contracted  to  be 
paid  in  money. 

5th.  Insolvent  laws  were  enacted  by  some  of  the  States,  the  effect 
of  which,  when  applied  to  the  relations  of  debtor  and  creditor,  prac- 
tically amounted  to  a  complete  discharge  of  indebtedness  without 
consideration. 

6th.  Laws  were  also  passed  making  the  most  unjust  and  invidious 
distinctions  in  favor  of  the  citizens  of  the  States  enacting  them,  and 
against  foreigners  and  citizens  of  neighboring  States.  In  fact,  the 
American  judiciary  became  a  matter  of  contempt  at  home,  and  of 
burlesque  abroad. 

7th.  There  were  other  evils  that  called  loudly  for  remedy. 

Some  related  to  the  welfaie  of  our  foreign  commerce ; 

Some  to  the  conflict  of  interests  between  citizens  of  different 
States; 

Some  to  the  relief  of  foreigners  who  had  given  credit  to  our  citi- 
zens; 

Others  related  to  territorial  disputes  between  different  States; 
and  still  others. 

To  titles  of  lands  under  grants  from  different  States. 

So  loose  and  reckless  had  the  legislative  and  judicial  administra- 
tion of  affairs  become,  that  it  was  conceded  by  all  parties,  that,  un- 
less some  effectual  remedy  were  applied,  our  political  institutions 
must  crumble  into  ruins.  To  establish  justice,  therefore,  was  a  lead- 
ing purpose  of  the  authors  of  the  Constitution. 

§3. 

1st.  To  insure  domestic  tranquillity  was  another  of  the  expressed 
objects  of  the  new  Constitution.  Domestic  contentions,  as  may  be 
inferred  from  what  has  already  been  said,  were  the  order  of  the 
day. 

2d.  Whatever  foreign  influence.  State  jealousies,  commercial 
rivalries,  legislative  retaliations,  disputes  about  boundaries  and  State 
jurisdictions,  and  perpetual  failure  to  administer  justice  through  an 


112  ANALYSIS   OF   CIVIL  GOVERNMENT.     [Part  II. 

imbecile  judiciary,  could  accomplish,  to  foster  domestic  discord,  had 
been  done  from  the  close  of  the  Revolution  to  the  adoption  of  the 
Constitution.  Hence  the  whole  country  was  anxious  for  domestic 
trancjuillity. 

§4. 

1st.  The  common  defense  was  not  properly  provided  for  under 
the  Confederation. 

A  people  not  prepared  for  war,  and  known  not  to  be,  will  con- 
stantly be  liable  to  aggressions  from  neighboring  nations.  On  the 
contrary,  a  nation  known  to  be  prepared  will  be  quite  unlikely  to 
be  attacked.  A  weak  nation  is  never  formidable,  and  will  never 
command  the  respect  of  its  neighbors. 

2d.  Congress,  under  the  Confederation,  as  we  have  seen,  could 
recommend,  but  could  not  enforce,  measures  for  the  common  defense. 
They  could  not  even  declare  war,  nor  exercise  any  of  the  war-pow- 
ers, without  the  concurrence  of  nine  of  the  thirteen  States ;  nor,  even 
when  they  had  declared  war  under  these  restrictions,  should  they  do 
so,  could  they  force  into  service  a  single  soldier.  Sound  statesman- 
ship demanded,  therefore,  that  something  should  be  done  to  provide 
more  effectually  for  the  common  defense.  By  reference  to  the  war- 
power  in  the  Constitution,  it  will  be  seen  that  this  provision  has 
been  made. 

§5. 

1st.  The  duty  to  promote  the  general  welfare  of  its  citizens 
inherently  belongs  to  every  national  sovereignty.  It  is  indeed,  or 
should  be,  the  primary  purpose  of  every  government.  The  indi- 
vidual States  of  America  had  not  the  means,  nor  have  they  now, 
to  secure  this  desirable  object.  It  requires  larger  resources  than 
belong  to  a  single  State. 

2d.  Stretching  over  such  a  vast  extent  of  territory  as  the  States 
of  this  Union  occupied  during  the  last  century,  and  more  especially 
as  they  are  sure  to  occupy  before  the  close  of  the  present,  isolation 
of  State  interests  is  out  of  the  question.  What  concerns  one  State, 
in  a  greater  or  less  degree,  must  concern  all.  There  is  not  a  State 
in  this  Union  which  has  not  an  interest  in  the  harbors  of  New  York 
and  New  Orleans. 


Part  IT.]  NOTES  ON  PKEAMBLE.  113 

From  our  geographical  peculiarities  and  relations,  it  would  bo 
impossible  to  guard  the  interests  of  commerce,  agriculture,  and 
manufactures,  without  the  agency  of  a  more  plenary  power  than 
belongs  to  a  single  State. 

3d.  This  clause,  "the  general  welfare,"  doubtless  refers  more 
especially  to  the  affairs  of  commerce ;  and  this  is  an  interest  that 
pervades  all  other  interests  of  a  great,  growing,  free,  and  industrious 
people.  The  clause  means  more  than  this,  however.  It  is  general 
in  its  character,  inserted  not  only  in  the  preamble,  but  in  the  Con- 
stitution itself,  in  the  enumeration  of  the  powers  of  Congress.  In 
fact,  the  whole  Constitution  is  directed  to  this  end. 

4th.  From  the  poverty  of  language,  it  would  be  impossible  to 
specify,  within  any  convenient  limits,  all  the  powers  which  a  govern- 
ment like  that  of  the  United  States  might  at  some  time  find  it 
necessary  to  exercise,  and  under  some  possible  emergencies. 

And  although  fears  may  be  indulged  in  some  quarters,  that, 
under  a  clause  of  such  broad  signification,  some  of  the  departments, 
especially  the  legislative,  and  perhaps  the  executive,  may  overreach 
and  go  beyond  their  prerogatives,  yet  the  ballot  is  the  remedy  in 
the  one  case,  and  impeachment  in  the  other. 

§6. 

1st.  "  To  secure  the  blessings  of  libei*ty  to  ourselves  and  our  pos- 
terity "  is  the  closing  language  of  the  preamble.  It  is  an  appropri- 
ate climax.  It  briefly  expresses  the  whole  purpose  of  human 
government. 

*'  Give  me  liberty,  or  give  me  death  !  "  exclaimed  the  immortal 
orator  of  the  Revolution.  Without  political  and  religious  liberty, 
life  itself  would  become  valueless,  and  existence  a  burden ;  with  it, 
we  may  have  all  that  is  valuable  in  earthly  institutions.  For,  if  a 
nation  enjoys  liberty,  its  citizens  have  the  means  of  enjojang  every 
other  blessing  adapted  to  human  existence. 

2d.  But  the  patriotic  authors  of  the  Constitution  were  not  con- 
tent with  this  sacred  boon  for  themselves  merely :  they  were  earnest 
to  porpetuate  this  inestimable  blessing  to  the  remotest  posterity. 

There  was  a  sublime  disinterestedness  in  the  arduous  and  hazard- 

8 


U4  ANALYSIS   OF   CIVIL  GOVERNMENT.    [Part  II. 

ous  labors  of  our  fathers,  whicli  ought  to  inspire  the  profoundest 
gratitude  of  their  descendants  to  the  latest  ages.  May  the  fabric  of 
constitutional  liberty,  reared  by  their  wisdom,  never  be  demolished 
until  the  last  sun  shall  set  on  the  last  eve  of  time  ! 


DEPAETMENTS. 

Civil  government  in  the  United  States  is  administered  through 
three  several  departments ;  viz.  :  — 

( I.     Legislative  ; 
Civil   Government.   ■<  ii.    Executive; 
( III.  Judicial. 

I.  — LEGISLATIVE  DEPARTMENT. 

>s^  All  legislative  power  granted  by  the  Constitution  is  vested 
in  a  Congress  of  the  United  States^  consisting  of  a  /Senate 
and  House  of  Representatives.   3, 

Senate 
Congress.  -<{  and 

House  of  Representatives. 


CHAPTER   I. 

HOUSE   OF    EEPRESEXTATIVES. 
ARTICLE  I.  — PROPORTION. 

1.  The  number  of  representatives  shall  not  exceed  one  for 

every  thirty  thousand.   S, 

2.  Z/htil  the  first  enumeration  was  made,  the  States  were 

allowed  to  choose  as  follows :  — 
N'ew  Hampshire,  3.  Delaware,  1. 

Massachusetts,  6.  Maryland,  6. 

Connecticut,  5.  Virginia,  10. 

N'ew  York,  6.  North  Carolina,  5. 

New  Jersey,  4.  South  Carolina,  6. 

Pennsylvania,  8.  Georgia,  3. 

Rhode-Island  and  Providence  Plantations,  1.  5. 


Part  II.]        HOUSE  OF  REPRESENTATIVES,  115 

§  1.  At  the  time  of  the  formation  of  the  Constitution,  no  census 
having  been  taken,  there  was  no  accurate  information  in  possession 
of  the  members  of  the  Convention  in  regard  to  the  population  of 
the  several  States  respectively.  There  was  considerable  variety  of 
opinion  on  the  subject ;  and,  in  fixing  the  proportion  of  representa- 
tion in  the  House  of  Representatives,  entire  satisfaction  was  not 
secured. 

§  2.  It  was  settled,  however,  without  much  difficulty,  that,  when- 
ever the  population  should  be  accurately  ascertained,  the  number  of 
representatives  should  not  exceed  one  for  every  thirty  thousand 
inhabitants.  It  was  believed  that  this  proportion  would  give  about 
sixty-five  members  in  all,  —  the  number  of  which  the  House  was  to 
be  constituted  until  the  census  could  be  taken. 

§  3.  Fifty-six  was  proposed  at  first  as  the  most  convenient  num- 
ber ;  but,  in  undertaking  to  assign  to  each  State  its  equitable  pro- 
portion of  this  number,  the  members  of  the  Convention  could  not 
agree.  Then  it  was  proposed  that  the  number  be  extended  to  sixty- 
five  ;  when  Mr.  Madison  proposed  that  this  number  should  be 
doubled.  But  finally  the  Convention  adopted  sixty-five,  behoving 
that  this  would  give  one  member  for  about  thirty  thousand. 

§  4.  The  following  table  shows  the  ratio  of  representation  in  the 
House  of  Representatives  through  the  several  decades,  from  1790  to 
1860  inclusive  :  — 

1790-1800,  ratio  33,000,  number  of  members  106. 

1800-1810,     "    33,000,       "  "        142. 

1810-1820,     "    35,000,       "  "        182. 

1820-1830,     ''    40,000,       "  >  "        213. 

1830-1840,     '*    47,000,       "  "       240. 

1840-1850,     ♦'    70,680,       "  "        233. 

1850-1860,     '•    93,420,       "  *'        234. 

1860-1870,     -127,316,       **  ♦'        242. 

§  5.  The  number  of  members  in  each  case  is  fixed  by  law  of  Con- 
gress, to  take  cfi*ect  at  the  beginning  of  the  following  decade.  But 
the  law  refers  only  to  the  aggregate  number  allowed  to  the  States  in 
the  Union  at  the  time  of  the  passage  of  the  law,  and  to  their  respec- 
tive proportions  of  that  aggregate.     Of  course  the  aggregate  mim- 


ii6  ANALYSIS   OF  CIVIL  GOVERNMENT.     [Part  II. 

ber  is  increased  by  the  admission  of  new  States,  as  each  State  is 
entitled  to  at  least  one  member, 

§  6.  In  the  decade  beginning  with  1860,  it  will  be  observed,  the 
number  of  members  was  fixed  at  242.  But,  in  1861,  many  seats 
were  vacated  on  account  of  the  great  Rebellion  which  broke  out  in  the 
early  part  of  that  year.  All  the  representatives  from  those  States 
that  passed  ordinances  of  secession  resigned  their  seats  ;  and,  even 
now  (July,  1868),  but  few  of  the  seats  vacated  at  that  time  have 
been  filled. 

§  7.  For  various  reasons,  the  Thirty-ninth  Congress  refused  to 
admit  the  representatives  from  those  States ;  and  the  Fortieth  Con- 
gress has  thus  far  taken  the  same  view  of  the  subject. 

On  account  of  these  vacancies,  the  Thirty-ninth  Congress,  at  its 
second  session,  numbered  but  192  members. 

Each  organized  Territory  is  allowed  one  representative,  who  may 
participate  in  the  discussions  of  the  house,  but  is  not  permitted  to 
vote.     But  this  is  not  a  constitutional  provision:  it  is  by  act  of  Con- 


AKT.  II.  — HOW  APPORTIONED. 

Representatives  shall  be  apportioned  among  the  several 
States  according  to  their  respective  numbers^  which  shall  include, 

1.  The  whole  number  of  free  persons  ; 

2.  Those  bound  to  service  for  a  term  of  years  ; 
'3.  Indians  who  are  taxed;  and, 

4.    Three-fifths  of  all  other  persons,  except 
Indians  who  are  not  taxed.   5, 

§  1.  One  of  the  most  perplexing  of  all  the  questions  that  came 
before  the  Constitutional  Convention  was  that  which  related  to  the 
apportionment  of  members  of  the  House  of  Representatives  among 
the  several  States.  So  great  a  change  was  proposed  in  regard  to 
the  composiiion  of  the  legislative  branch  from  that  which  %ad 
existed  under  the  Confederation,  that  this  matter  of  apportionment 
became  a  very  difficult  question  to  settle. 

§  2.  In  the  first  place,  under  the  Confederation,  there  was  but 
one  house  of  Congress.  In  that  house,  the  States,  large  and  small, 
had  equal  representation,  and  were  equal  in  political  influence  and 


Part  II.]        HOUSE   OF   EEPEESENTATIVES.  117 

power.     The  smaller  States,  as  might  reasonably  be  presumed,  were 
reluctant  to  surrender  that  advantage. 

§  3.  In  the  second  place,  it  was  now  proposed  to  have  two  houses 
of  Congress,  in  one  branch  of  which  the  smaller  States  insisted  on 
equality  of  representation.  This  was  opposed  by  the  larger  States, 
as  it  was  claimed  that  political  power  should  depend  on  population, 
or  population  and  property. 

§  4.  Here  was  a  direct  conflict  of  interests.  The  smaller  States 
recognized  this  proposition  as  a  blow  aimed  at  their  State  sovereignty, 
and  one  which,  if  successful,  would  be  humiliating  to  their  State 
pride  ;  it  would  greatly  diminish  their  power  in  the  national  councils.  • 

§  6.  A  considerable  number  of  the  States  were  in  favor  of  making 
wealth,  or  wealth  and  population  combined,  the  basis  of  represen- 
tation. The  Southern  States,  at  that  time,  were  richer  than  the 
Northern ;  and  this  question  was  cne  of  sectional  interest. 

§  6.  The  smaller  States  at  length  yielded  the  point,  consenting  that 
population  might  be  accepted  as  the  basis  of  representation  in  the 
House.  The  larger  States  consented  to  equality  of  suffrage  in  the 
Senate.  But  now  the  question  was.  Who  shall  be  included,  and  who 
excluded,  in  the  representative  population  ?  Shall  all  persons  be 
counted?  or  shall  certain  classes  be  omitted  ?  On  this  vexed  question, 
there  was  probably  more  asperity  of  feeling  demonstrated  than  on 
any  other  that  came  before  the  Convention. 

§  7.  The  question  finally  narrowed  down  to  this :  Shall  the 
slaves  be  counted  the  same  as  free  white  inhabitants  ?  The  States 
having  the  most  slaves  said  "  Yes;  "  those  having  but  few  said  ''  No.^* 
All  the  States  except  Massachusetts  at  that  time  held  slaves.  But 
the  Northern  and  Eastern  Spates  held  but  few  comparatively;  and  it 
was  apparent  that  even  these  few  were  rapidly  diminishing  in  num- 
bers. 

§  8.  If  slaves  were  to  be  counted  as  free  persons,  this  would  give 
the  Southern  States  a  great  advantage.  The  South  insisted  that 
they  should  be  included  in  the  representative  basis ;  the  North,  that 
they  should  not.  Here  was  a  direct  conflict  of  opinion,  based  on 
conflict  of  interest.  It  became  evident,  that  unless  concessions  were 
made  from  some  quarter,  or  all  quarters,  the  labors  of  the  Conven- 
tion  were  at  on  end. 


118  ANALYSIS   OF  CIVIL   GOVERNMENT.     [Part  II. 

§  9.  It  should  be  remarked  here,  also,  that  the  foreign  slave-trade 
became  a  prominent  element  in  the  discussion.  The  idea  of  count- 
ing negroes  imported  from  Africa,  as  soon  as  they  were  landed  on 
our  shores,  as  so  many  white  men  would  count,  when  they  were 
merely  property,  and  in  no  manner  contributed  to  the  intelligence 
of  the  population,  and  of  allowing  that  count  to  increase  the  num- 
ber of  Southern  representatives  in  the  House,  to  the  minds  of  many 
of  the  great  men  in  that  Convention  was  offensive  in  the  extreme. 

§  10.  It  was  substantially  saying  to  any  State,  North  or  South 
(for  North  and  South  were  alike  involved  in  the  traffic),  "  The  more 
negroes  you  will  import,  the  more  members  you  may  have  in  the 
national  council ;  and  the  more  you  will  increase  the  slave  popula- 
tion, the  greater  shall  be  your  political  power  and  influence." 

§  11.  On  the  other  hand,  those  States  in  which  the  slaves  were 
most  numerous,  and  were  likely  to  go  on  increasing,  contended,  that 
although  there  was  a  sense  in  which  the  slaves  were  property,  yet 
they  were  something  more  :  they  were  human  beings,  brought  within 
the  pale  of  civilized  society,  and  ought  to  be  counted  with  the  repre- 
sentative population. 

§  12.  It  will  be  seen,  that,  if  the  basis  of  representation  were 
fixed  at  one  member  for  every  thu-ty  thousand  inhabitants,  a  State 
having  sixty  thousand  slaves  would  be  entitled  to  two  members  on 
account  of  this  slave  population.  Thus  slavery  would  and  should, 
the  South  contended,  become  an  element  of  political  power. 

§  13.  As  with  many  other  questions  in  that  Convention,  this  was 
finally  settled  by  compromise,  and  on  the  following  terms  :  — 

1st.  Five  slaves  were  to  be  counted  as  three  persons. 

2d.  The  slaves  were  to  be  counted  on  the  same  basis  for  purposes 
of  direct  taxation  for  the  support  of  the  General  Government ;  and 
direct  taxation  was  to  be  imposed  in  proportion  to  the  representative 
population. 

3d.  The  Northern  States  consented  to  a  clause  in  the  Constitution 
prohibiting  legislative  interference  with  the  foreign  slave-trade  prior 
to  1808. 

4th.  The  Southern  States  consented  to  the  imposition  of  a  tax  or 
duty  on  imported  slaves,  not  exceeding  ten  dollars  iotf^h  pfirsoa. 

■7    '.,    ^'^  /-.r.r  ^-y^-\ 


Part  II.]  HOUSB  OF   EEPRESENTATIYES.  119 

The  clause  "  three-fifths  of  all  other  persons,"  at  the  head  of  this 
article,  refers  to  slaves. 

§  14.  At  that  day  it  was  generally  supposed,  that  counting  three- 
fifths  of  the  slaves  for  purposes  of  direct  taxation  would  be  a  mat- 
ter of  considerable  advantage  to  the  Northern  States  ;  for  it  was  not 
then  presumed  that  the  expenses  for  the  support  of  government 
would  be  chiefly  paid  through  the  custom-house  revenue,  as  afler- 
wards  proved  to  be  the  case. 

§  15.  But  the  advantage  proved  to  be  nearly  all  on  the  side  of  the 
Southern  States :  for,  in  the  first  place,  only  three-fifths  of  their 
slave  population  were  to  be  counted  for  purposes  of  direct  taxation ; 
while  all  the  Northern  population  was  to  be  reckoned  for  this  object, 
except  the  very  few  slaves  held  there. 

In  the  second  place  (and  this  was  a  matter  which  the  Convention 
did  not  foresee) ,  direct  taxation  has  never  been  a  matter  of  much 
importance  until  since  the  abolition  of  slavery.  The  only  instances 
of  this  kind  of  taxation  were  in  1798,  1813,  and  1815. 

(The  subject  of  taxation  will  be  further  noticed  in  another  place.) 

§  16.  By  a  recent  amendment  to  the  Constitution  (Art.  XIII. 
of  Amendments),  slavery  has  been  abolished.  How  the  negro 
population  will  be  counted  among  the  representative  population  here- 
after, remains  to  be  determined.  There  is  a  proposed  amendment 
before  the  country,  which,  if  adopted,  will  require  that  they  be 
excluded  from  the  count  altogether,  unless  they  shall  be  enfran- 
chised.     (See  appendix  to  Analysis  C.) 

§  17.  It  will  be  observed  that  the  Constitution  nowhere  mentions 
the  word  slave  or  slavery.  Wlienever  it  is  necessary  to  allude 
to  that  class  of  persons,  a  definition  is  adopted  instead  of  the 
word  itself,  except  in  the  Thirteenth  Article  of  Amendments  before 
alluded  to.  This  was  studiously  intended  by  the  authors  of  that 
instrument,  feeling  that  it  would  be  a  stain  on  their  work. 

ART.  III.  — ELIGIBILITY. 

1.  A  representative  must  have  attained  to  the  age  of  twenty- 

fioe  years. 

2.  Must  have  been  seven  years  a  citizen  of  the  United  States. 


120  ANALYSIS   OF  CIVIL  GOVEKNMENT.     [Part  II. 

3.  When  elected^  must  he  an  inhabitant  of  the  State  in  which 

chosen.   4:. 

4.  No  United- States  officer  shall  be  a  member  of  either  house 

of  Congress.    2S.     (See  appendix  to  Analysis  D.) 

§  1.  That  a  member  of  the  House  of  Representatives  should  be  at 
least  twenty-five  years  old  was  adopted  in  the  Convention  without 
debate.  Few  men  before  that  age  have  had  sufficient  experience  to 
fit  them  for  so  important  a  trust ;  and  as  it  seemed  necessary  to  spe- 
cify some  age  before  which  a  person  should  be  held  ineligible  to 
this  position,  perhaps  twenty-five  may  be  regarded  as  the  most  suit- 
able. 

*§  2.  In  order  to  be  a  representative,  it  is  not  necessary  that  he 
shall  be  a  natural-born  citizen.  By  the  Constitution,  however, 
he  must  have  been  a  citizen  of  the  United  States  seven  years.  If 
bom  under  another  government,  he  may  become  a  citizen  of  this 
country  by  a  process  called  naturalization.  By  a  law  of  Congress, 
it  requires  five  years'  residence  before  this  can  be  accomplished ; 
which,  added  to  seven  years'  citizenship,  requires  twelve  years 
actual  residence  before  an  alien  can  become  a  representative  in  Con- 
gress. A  much  longer  period  than  this,  however,  was  strenuously 
insisted -on  by  many  of  the  members  of  the  Convention. 

§  3.  The  Constitution  requires  that  the  member,  when  elected, 
shall  be  an  inhabitant  of  the  State  in  which  he  is  chosen.  This  is  a 
provision  so  reasonable  as  to  admit  of  neither  debate  in  the  Conven- 
tion, nor  of  difference  of  opinion  among  the  people.  The  inhabi- 
tancy of  the  S'ate  in  which  chosen  is  limited  to  the  particular  time 
when  chosen,  not  requiring  the  representative  to  continue  it  there. 
He  may  hold  his  seat  in  the  House,  therefore,  even  should  he  change 
his  residence  to  another  State  during  his  continuance  as  a  represen- 
tative. 

Nor  is  it  necessary  that  he  shall  reside  in  the  particular  Congres- 
sional district  in  which,  or  by  which,  he  is  chosen. 

§  4.  No  person  holding  any  office  under  the  United  States  is 
eligible  to  a  seat  in  either  house  of  Congress.  On  this  provision, 
there  was  no  difference  of  opinion  among  the  members  of  the  Con- 
stitutional Convention ;  although  many  were  in  favor  of  caiTying  the 


Part  II.]  HOUSE   or  KEPRESENTATIYES.  121 

restriction  much  further.  The  Constitution  limits  the  ineligibility  to 
the  period  of  continuance  in  office  under  the  United  States.  Sev- 
eral of  the  members  were  in  favor  of  extending  this  incomi)etency  to 
hold  a  federal  office  for  from  one  to  three  or  four  years  beyond  the 
expiiation  of  the  term  of  service  for  which  a  senator  or  representa- 
tive should  be  elected. 

§  5.  But  their  deliberations  resulted  in  prohibiting  any  officer 
under  the  General  Government  from  being  a  member  of  either  house 
of  Congress  during  his  continuance  in  office.  This  provision 
originated  in  a  deference  to  State  jealousy,  and  fear  that  the  General 
Government  would  obtain  an  undue  influence  in  the  national  coun- 
cils. If  a  Federal  officer  were  allowed  to  be  a  member  of  either 
house,  he  might  wield  an  undue  influence  over  those  with  whom  he 
would  be  associated  in  legislative  deliberations. 

ART.  IV.  — TERM. 

Members  of  the  House  of  Representatives  are  chosen  every 
second  year.   3. 

§  1 .  There  was  much  difference  of  opinion  in  the  Convention  as 
to  what  length  of  time  ought  to  constitute  a  representative  term. 
One  class  was  in  favor  of  limiting  it  to  one  year ;  urging  that  the 
people  were,  and  would  continue  to  be,  in  favor  of  frequent  elec- 
tions ;  that  such  was  the  only  defense  of  the  people  against  tyranny ; 
and  that  this  plan,  bringing  representative  and  constituency  more 
frequently  face  to  face,  would  be  likely  to  give  a  stronger  sense  of 
official  responsibility. 

§  2.  Another  class  urged  that  a  term  of  three  years  was  prefer- 
able to  one ;  that  instability  is  one  of  the  great  vices  of  a  republic  ; 
that  time  should  be  given  for  members  to  acquire  a  competent 
knowledge  of  the  various  interests  of  States  to  which  they  did  not 
belong.  It  was  claimed  that  one  year  would  be  almost  consumed 
in  preparing  for  and  traveling  to  and  from  the  seat  of  national 
business. 

§  3.  It  was  also  urged  against  the  annual  plan,  that  frequency 
of  elections  tended  to  make  the  people  regardless  of  them,  and  to 
facilitate  the  success  of  little  cabals.     It  had  been  found  necessary 


122-  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 

in  some  States,  where  the  elections  were  annual,  to  force  attendance 
and  voting  by  severe  regulations. 

§  4.  But,  as  was  usual  in  the  Convention,  a  compromise  of  opin- 
ion prevailed ;  and  it  was  accepted  that  members  be  chosen  every 
second  year.  The  representative  term  always  expnes  in  the  years 
of  odd  numbers,  as  1867,  '69,  71,  &c. 

ART.  v.— BY  WHOM  ELECTED. 

By  the  people  of  the  several  States.  3. 

§  1.  It  was  not  easy  for  the  Convention  to  agree  on  the  question, 
"By  whom  shall  the  representatives  be  elected?"  It  was  urged 
by  some  members,  that  the  people  were  incapable  of  properly  exer- 
cising this  high  and  important  trust;  that  they  should  have  as  little 
to  do  as  possible  about  the  government ;  that  they  were  ignorant, 
and  constantly  liable  to  be  misled ;  that  great  evils  would  result 
from  such  an  excess  of  democracy ;  and  that,  while  the  people  were 
not  wanting  in  purity  of  motive,  they  were  liable  to  become  the 
dupes  of  pretended  patriots. 

§  2.  On  the  contrary,  it  was  urged  that  the  election  of  this 
branch  of  Congress  should  be  by  the  people ;  that  the  House  of 
Representatives  was  to  be  the  grand  depository  of  the  democratic 
principle  of  the  government ;  that  it  was  to  be  our  House  of  Com- 
mons ;  that  it  ought  to  know  and  sympathize  with  every  part  of 
the  community,  and  ought,  therefore,  to  be  taken,  not  only  from 
different  parts  of  the  whole  republic,  but  from  the  various  districts 
of  the  larger  States. 

§  3.  It  was  claimed  that  this  was  emphatically  the  people's  own 
government;  that,  however  elevated  the  situation  of  the  more 
wealthy  might  be  to-day,  a  few  years  not  only  might,  but  certainly 
would,  distribute  their  posterity  throughout  the  lowest  classes  of 
society.  Every  selfish  motive,  therefore,  and  every  family  attach- 
ment, ought  to  lead  the  Convention  to  provide  no  less  carefully  for 
the  rights  and  happiness  of  the  lowest  than  of  the  highest  order  of 
citizens. 

§  4.  The  members  of  the  Convention  who  were  opposed  to  an 
dec  ion  of  representatives  by  the  people  were  in  favor  of  electing 


PaBT  II.]  HOUSE   OF   REPRESENTATIVES.  123 

them  by  the  legislatures  of  the  several  States ;  maintaining  that  it 
uould  bo  utterly  impracticable  to  elect  them  by  the  people.  By  a 
close  vote,  however,  it  was  decided  to  place  the  election  of  members 
of  the  house  in  the  hands  of  the  people  of  the  several  States. 

ART.  VI.— ELECTORS. 

The  electors  in  each  State  shall  have  the  qualifications 
requisite  for  electors  of  the  most  numerous  branch  of  the 
State  legislatures.   3. 

§  1.  The  word  "  electors,"  as  used  here,  is  synonymous  with  vo- 
ters. It  was  necessary  to  adopt  some  rule  that  would  apply  to  all  the 
States  in  determining  or  defining  the  qualifications  of  voters  for 
members  of  the  House  of  Representatives.  On  this  subject,  there 
were  three  classes  of  opinions  :  — 

§  2.  The  first  class  proposed  to  require  the  same  qualifications 
that  were  requisite  to  vote  for  members  of  the  several  State  legisla- 
tures.    This  was  objected  to  on  two  grounds  :  — 

1st.  That  it  would  thus  be  left  to  the  States  to  settle  the  question 
of  qualifications. 

2d.  That  it  would  be  impracticable  in  many  of  the  States,  as  the 
qualifications  to  vote  for  a  State  senator  were  higher  than  were 
required  to  vote  for  the  members  of  the  most  numerous  branch. 

Another  proposition  was,  thnt  freeholders  only  should  be  allowed 
to  vote  for  members  of  the  House  of  Representatives.  This  found 
favor  with  many  of  the  ablest  members  of  that  body,  but  failed. 

§  3.  The  test  finally  adopted  was,  perhaps,  the  best  among  the 
number  proposed,  or  that  could  be  proposed ;  which  leaves  it  in  the 
hands  of  the  States  themselves,  with  this  limitation,  that  whatever 
test  they  see  fit  to  adopt  as  a  qualification  to  vote  for  the  most 
numerous  branch  of  their  own  legislatures  respectively,  shall  settle 
the  question  as  to  whether  the  elector  may  vote  for  a  member  of  the 
House  of  Representatives. 

§  4.  No  State,  therefore,  has  the  right  to  require  any  higher  or 
different  qualifications  of  its  citizens,  to  vote  for  a  member  of  the 
House  of  Representatives,  than  it  requires  of  them  to  vote  for  the 
popular  branch  of  its  own  legislature. 


124  ANALYSIS   OF   CIVIL  GOVERNMENT.     [Part  II. 

§  5.  Members  of  the  House  of  Representatives  arc  elected  in 
the  several  States  by  Congressional  districts.  When  it  has  been 
ascertained  how  many  members  each  State  is  entitled  to,  the  leo-'s- 
latures  of  the  several  States  divide  them  respectively  into  as  many 
Congressional  districts  as  they  are  each  entitled  to  members.  These 
Congressional  districts  arc  numbered,  for  convenience,  Ist,  2d,  3d, 
&c. ,  and  are  known  by  their  numbers. 

The  electors  of  each  district  vote  for  but  one  candidate,  thouo-h 
that  candidate  need  not  necessarily  be  a  resident  of  the  voter's  dis- 
trict. He  must,  however,  as  we  have  seen,  be  an  inhabitant  of  the 
State  in  which  he  shall  be  chosen. 

§  6.  Several  of  the  States  formerly  elected  their  representatives 
by  general  ticket ;  that  is,  each  elector  voted  for  all  the  membera 
to  which  the  State  was  entitled,  or  for  a  number  equal  to  that  num- 
ber. Until  1842,  there  was  no  act  of  Congress  requiring  elections 
of  members  by  Congressional  districts ;  but,  June  25  of  that 
year,  a  law  was  passed  requiring  the  States  to  elect  by  districts, 
and  allowing  each  district  to  elect  but  one  representative. 

ART.  VII.— VACANCIES. 

When  vacancies  happeti  in  the  representation  from  any 
State,  the  executive  authority  thereof  shall  issue  writs  of 
election  to  fill  such  vacancies.  O. 

§  1.  The  writ  of  election  is  directed  to  the  Congressional  district 
in  which  the  vacancy  occurs.  The  election  held  in  pursuance  of 
such  writ  is  called  a  special  election. 

§  2.  The  representative  elected  to  fill  a  vacancy  does  not  serve  a 
full  term,  but  the  remainder  of  the  term  for  which  his  predecessor 
was  elected.  Vacancies  can  happen  only  by  death,  resignation,  or 
expulsion  of  the  incumbent  from  his  seat  in  the  house.        ' 

ART.  VIII.  — CENSUS. 

1.  How  Made.  In  such  manner  as  Congress  shall  by  law  direct. 

2.  When  Made.    \st.  The  actual  enumeration  sliall  he  made 

within  three  years  after  the  first  meeting  of  Congress. 
2d.  It  shall  be  made  within  every  subsequent  term, 
qf  ten  years.  5, 


Part  II.]  HOUSE   OF  KEPKESENTATIVES.  125 

§  1.  Tlie  manner  of  taking  the  census  is  under  the  control  of 
Congress,  to  bs  fixed  by  law.  It  has  been  taken  eight  times  since 
the  organization  of  the  government;  viz.,  1790,  1800,  1810,  1820, 
1830,  1840,  1850,  and  1860. 

§  2.  By  a  law  of  Congress,  the  Department  of  the  Interior  has 
the  general  supervision  of  the  matter.  Under  that  department,  the 
execution  of  the  business  is  placed  more  immediately  in  the  care  of 
the  United-States  marshals  for  the  several  States,  who  divide  their 
respective  districts  into  sub-districts  for  greater  convenience,  each 
Bub-district  numbering  not  to  exceed  twenty  thousand  inhabitants. 
The  marshals  appoint  assistants,  or  deputies,  for  each  of  these  sub- 
divisions. 

§  3.  The  duties  of  these  assistants,  or  deputies,  consist  in  visiting 
personally  every  dwelling-house  and  family  within  the  limits  of  their 
respective  jurisdictions,  and  propounding  to  some  member  of  the 
family,  of  suitable  age  and  intelligence,  such  questions  as  are  required 
by  act  of  Congress. 

§  4.  These  questions  relate  not  only  to  the  number  of  inhabitants, 
but  their  ages,  sex,  color,  ability  to  read  and  write,  facts  relating  to 
agriculture,  manufactures,  commerce,  resources  of  the  country,  its 
productions,  and,  in  fact,  every  thing  that  may  be  necessary  to  give  a 
general  view  of  the  condition  of  the  United  States. 

§  5.  Nor  is  it  left  to  the  discretion  of  persons  questioned,  whether 
they  will  answer  these  interrogatories.  They  are  compelled  \o 
answer  under  a  penalty  of  thirty  dollars  for  each  refusal ;  and  the 
person  so  refusing  can  be  impiisoned  until  the  penalty  is  paid ;  and 
a  new  refusal  can  be  followed  by  a  new  penalty  and^  imprisonment. 

§  6.  The  Constitution  requires  that  the  census  shall  be  taken 
once  in  ten  years.  By  act  of  Congress,  it  was  taken  the  first  time 
in  1790  ;  and  it  has  been  taken  decenially  ever  since.  In  the  Con- 
stitutional Convention,  the  proposition  was  considered,  to  take  it 
once  in  twenty  years,  and  once  in  fifteen  ;  but  once  in  ten  was  finally 
adopted.  Once  in  ten  years  was  thouglit  to  be  sufficiently  frequent 
for  all  practical  purposes.  It  is  attended  with  considerable  expense ; 
costing  for  instance,  in  1850,  nearly  a  million  and  a  half  of  dollars. 

§  7.  The  following  table  shows  the  aggregate  population  of  the 


126  ANALYSIS   OF  CIVIL  GOVERNMENT.     [Part  IL 

United  States,  according   to  the  various  censuses  taken  since  the 
adoption  of  the  Constitution  :  — 


1790,  3,929,827. 
1800,  5,305,932. 
1810,   7,239,812. 


1830,  12,854,711. 
1840,  17,068,355. 
1850,   23,263,485. 


1820,   9,638,191.     |    1860,   31,443,790. 

ART.  IX.  —  HOUSE-POWERS. 

1.  To  choose  their  speaker  and  other  officers. 

2.  Sole  power  of  originating  impeachments.    7, 

3.  Sole  power  of  originating  hills  for  raising  revenue.   SS. 

4.  Co-ordinate  with  the  Senate  in  general  legislation.  2, 

5.  When  the  electors  of  President  and  Vice-President  of  the 

United  States  fail  to  elect  a  President,  the  House  of 
Representatives  shall  elect  one.  04. 
§  1.  The  speaker  is  chosen  from  among  the  members  themselves, 
being  himself  a  representative.  It  is  his  duty  to  preside  over  the 
deliberations  of  the  House,  and  to  keep  order.  The  other  officers 
are  a  clerk,  sergeant-at-arms,  postmaster,  and  doorkeeper.  These 
officers  are  not  members  of  the  House. 

(List  of  Speakers  of  the  House,  Chap.  XV.,  Art.  Vm.,  Part  II.) 

§  2.  The  House  of  Representatives  has  the  sole  power  of  origi- 
nating articles  of  impeachment.  An  impeachment  is  a  solemn  and 
specific  accusation  brought  against  a  public  officer,  drawn  out  in  due 
form,  charging  him  with  treason,  bribery,  or  other  crimes  and  misde- 
meanors. It  is  in  the  nature  of  an  indictment,  being  only  prima 
facie  evidence  of  guilt,  —  sufficient,  however,  to  put  the  accused  on 
trial  at  the  bar  of  the  Senate.  Although  it  requires  a  two-third 
majority  of  the  Senate  to  convict  the  accused,  it  requires  only  a 
numerical  majority  to  prefer  the  impeachment  by  the  House. 

§  3.  The  following  course,  substantially,  is  pursued  in  preferring 
impeachments  :  — 

1st.  Some  member  of  the  House,  who  believes  that  charges  should 
be  made  against  a  public  officer,  proposes  that  a  committee  be  appoint- 
ed to  inquire  into  the  matter,  and  to  nmke  report  of  the  results  of 
their  investigations  to  the  House  at  .^'ome  future  time.     Such  com- 


Pakt  II.]  HOUSE  OF   REPEESENTATIYES.  127 

mittee  is  generally  appointed  without  opposition;  and  usually  the 
mover  will  be  appointed  its  chaiiman,  as  he  is  presumed,  from  the 
fact  that  he  makes  the  move,  to  have  some  knowledge  of  the  case. 

2d.  If  the  committee  find,  on  investigation,  that  the  charges  are 
well  founded,  and  are  of  such  a  character  as  to  render  the  party  im- 
plicated worthy  of  impeachment,  they  so  report  to  the  House,  specifi- 
cally defining  the  charges,  and  recommend  that  he  be  impeached. 

3d.  The  House  examines  the  report,  the  subject  is  discussed,  and 
a  vote  taken.  If  the  proposed  impeachment  is  adopted  by  the 
House,  and  is  not  drawn  out  in  due  form,  the  House  appoints 
another  committee,  to  whom  this  part  of  the  business  is  submitted, 
who  report  the  impeachment  in  specific  aiticles.  Another  vote  is 
taken  by  the  House  on  the  impeachment,  article  by  article. 

4th.  A  committee  is  now  apjwinted  by  the  House  to  take  the 
whole  matter  before  the  Senate,  and  to  represent  the  House  in  its 
prosecution.  The  House  has  now  taken  all  the  steps  properly 
belonging  to  that  body  in  the  proceedings.  The  proceedings  of  the 
Senate  in  the  case  will  be  noticed  in  treating  of  the  judicial  powers 
of  that  body. 

§  4.  It  seems  proper  that  the  House  should  possess  the  sole 
power  of  impeachment,  as  that  body  is  constituted  of  the  representa- 
tives of  the  people,  who  may  be  presumed  to  be  better  acquainted 
with  public  sentiment  in  their  respective  localities  than  members  of 
the  Senate.  In  England,  the  power  of  impeachment  is  vested  in 
the  House  of  Commons,  the  people's  branch  of  the  legislative 
department ;  and  the  trial  of  impeachment  belongs  to  the  House  of 
Lords,  which  is  analogous  to  the  United-States  Senate. 

§  5.  The  House  of  Representatives  has  the  sole  power  of  originat- 
ing bills  for  raising  revenue.  This  body,  as  has  been  stated,  is 
constituted  of  the  more  immediate  representatives  of  the  people ; 
and,  as  the  people  are  to  pay  the  taxes  if  any  are  imposed,  it  would 
seem  fit  and  proper  that  their  representatives  should  be  the  prime 
movers  in  any  measures  that  require  money  to  prosecute  them. 

§  6.  In  the  Constitutional  Convention,  there  was  considerable  op- 
position to  this  clause  of  the  Constitution.  Even  Mr.  Madison,  who 
was  ever  watehful  of  the  rights  of  the  people,  at  first  objected  to  it. 


128  ANALYSIS  OF  CIVIL  GOVEENMENT.     [Part  II. 

He  and  some  others  thought  that  the  Senate  would  be  a  more  capa- 
ble body  of  men,  and  that  it  would  be  bad  policy  to  tiius  discrimi- 
nate against  them. 

One  member  characterized  it  as  a  "degrading  discrimination." 
Another  said  it  would  take  away  the  responsibility  of  the  Senate, 
the  great  security  for  good  behavior ;  that  it  would  be  a  dangerous 
source  of  disputes  between  the  two  houses. 

The  workings  of  government  in  Great  Britain  were  often  referred 
to  in  the  Convention.  All  bills  for  raising  revenue  there  must  ori- 
^nate  in  the  House  of  Commons,  which,  as  has  been  stated,  is  the 
people's  branch. 

§  7.  Although  the  report  of  the  committee  in  Convention,  propos- 
ing that  money-bills  should  originate  with  the  House  only,  was  de- 
clared passed,  it  did  not  pass  by  a  majority  of  the  States  represented. 
Enough  voted  against  it  to  defeat  the  measure,  had  the  States  that 
were  divided  in  opinion  (and  therefore  lost  their  vote)  been  added 
to  their  number.     But  it  prevailed,  and  has  thus  far  worked  well. 

§  8.  The  House  is  co-ordinate  with  the  Senate  in  general  legisla- 
tion. There  are  special  powers  pecuUar  to  each  house ;  and  these 
are  so  clearly  defined  in  the  Constitution  as  to  take  away  all  xtmbi- 
guity.  There  can  be  no  mistaking  the  powers  of  one  house  for  those 
of  the  other.  But  in  the  general,  ordinary  business  of  law-making, 
the  houses  are  co-ordinate,  with  the  foregoing  exception. 

§  9.  Among  the  peculiar  and  exclusive  powers  of  the  House  of 
Representatives  is  that  of  choosing  a  President  of  the  United  States 
in  a  certain  contingency.  When  the  electors  of  President  and  Vice- 
President  fail  to  elect  a  President  by  a  majority  of  all  the  electors 
appointed  by  the  people  for  that  purpose,  the  election  of  the  Presi- 
dent devolves  on  the  House. 

§  10.  This  has  occurred  twice  since  the  adoption  of  the  Constitu- 
tion. Thomas  Jefferson  was  elected  the  first  time  (1801)  by  the 
House  of  Representatives,  on  the  thirty-sixth  ballot.  The  opiicsing 
candidate  was  Aaron  Burr.  At  that  time,  there  were  sixteen  States 
in  the  Union.  When  the  house  elects  a  President,  it  is  done  by 
States,  each  State  having  but  one  vote.  Jefferson  received  the  votes 
of  eight ;  Burr,  six ;  and  two  States  were  divided.     The  same  result 


Part  IT.]  THE  SENATE.  129 

continued  through  thirty-five  ballotings ;  but  on  the  thirty-sixth,  as 
above  stated,  Jeflerson  was  elected. 

This  was  done  under  the  third  clause  of  Article  II.  of  the  Consti- 
tution, which  has  been  superseded  by  Article  XII.  of  the  Amend- 
ments. 

§  11.  The  second  instance  of  the  election  of  a  President  of  the 
United  States  by  the  House  of  Representatives  occurred  in  1825. 
Four  candidates  were  voted  for  on  the  electoral  ticket,  neither  of 
whom  received  a  majority  of  all  the  votes.  These  candidates  were 
Andrew  Jackson  of  Tennessee,  who  received  ninety-nine  votes ; 
John  Quincy  Adams  of  Massachusetts,  eighty-four;  William  H. 
Crawford  of  Georgia,  forty-one ;  and  Henry  Clay  of  Kentucky, 
thirty-seven.  No  one  receiving  a  majority  of  the  electoral  votes,  the 
election  was  thrown  into  the  House  ;  when  John  Quincy  Adams  was 
elected.  Mr.  Clay's  name  did  not  come  before  the  House,  as  he 
received  the  smallest  number  of  electoral  votes  of  the  four  candi- 
dates. For  when  the  election  comes  into  the  House,  since  the 
Twelfth  Article  of  Amendments  was  adopted,  that  body  must  elect 
from  the  persons  having  the  highest  numbers,  not  exceeding  three 
on  the  list  of  candidates. 

The  election  of  President  will  be  more  critically  examined  when 
we  come  to  treat  of  the  executive  department. 

CHAPTER    n. 

UNITED-STATES    SENATE. 
ART.  I.  — HOW  COMPOSED. 

The  Senate  is  coynposed  of  two  senators  from  each  State.  8« 
§  1.  The  composition  of  the  Senate  is  the  result  of  compromise 
between  the  larger  and  smaller  States  represented  in  the  Constitu- 
tional Convention.  Under  the  Confederation,  it  will  be  remembered, 
the  representative  power  in  Congress  was  the  same  in  all  the  States ; 
and  that  body  consisted  of  but  one  house.  The  small  State  of 
Rhode  Island  had  one  vote,  and  the  great  State  of  Virginia  had  no 
more! 

9 


180  ANALYSIS  OF   CIVIL  GOVERNMEJ^T.     [Part  II. 

§  2.  The  small  States  were  tenacious  of  this  power,  and  were 
reluctant  to  allow  any  encroachment  on  their  sovereignty.  It  was 
inserted  in  the  credentials  of  the  members  of  the  Constitutional  Con- 
vention from  Delaware,  that  they  were  prohibited  from  changing 
that  article  in  the  Confederation  establishing  an  equality  of  votes 
among  the  States. 

§  3.  The  large  States  yielded  one  point  in  the  controversy,  and 
the  small  States  another.  The  large  States  consented  to  equality  in 
the  Senate,  and  the  small  States  to  representation  in  the  House  in 
proportion  to  population.  In  the  Senate,  therefore,  there  is  no  dis- 
tinction between  the  States ;  and  as  every  bill,  before  it  can  become 
a  law,  must  pass  both  Houses  of  Congi-ess,  the  rights  of  the  smaller 
States  are  not  likely  to  be  compromised  in  the  legislative  depart- 
ment. 

ART.   II.  — ELIGIBILITY. 

1.  3fast  have  attained  to  the  age  of  thirty  years, 

2.  Must  have  been  nine  years  a  citizeyi  of  the  United  States. 

3.  When  elected,  shall  be  an  inhabitant  of  the   State  for 

which  chosen.    10. 

4.  iVb  United- States  officer  shall  be  a  member  of  either  house 

of  Congress.  ^S,     (See  appendix  D.) 

§  1.  No  difference  of  opinion  prevailed  in  the  Convention  in  ref- 
erence to  the  age  named.  At  thirty,  the  character  of  a  man  has 
usually  become  defined  and  established.  He  may  be  presumed,  at 
this  age,  to  have  had  sufficient  experience  to  give  weight  and  dignity 
to  the  public  councils,  and  to  have  acquired  that  firmness  and  inde- 
pendence which  will  give  stability  of  purpose  in  the  performance  of 
his  duties. 

§  2.  By  reference  to  the  age  required  for  membership  of  the 
other  house,  it  will  be  seen  that  there  is  a  difference  of  five  years ;  a 
man  being  eligible  to  a  seat  in  that  house  at  twenty-five.  It  is  con- 
sidered, that,  at  least  in  some  respects,  the  duties  of  a  senator  are 
more  responsible  than  the  duties  of  a  member  of  the  House  of  Rep- 
resentatives. 

1st.  There  can  be  but  two  senators  from  one  State,  while  the 
number  of  representatives  will   depend   on   the   population.     The 


Part  IT.]  THE  SENATE.  131 

State  of  New  York,  for  instance,  can  have  but  two  senators ;  but  at 
present,  1868,  has  thirty-one  members  of  the  other  house. 

2d.  The  responsible  duty  of  trying  all  impeachments  devolves  on 
the  Senate ;  and  from  their  decision  there  is  no  appeal. 

3d.  A  senator  holds  for  the  term  of  six  years ;  a  representative, 
for  but  two.  If  a  senator  proves  incompetent  or  unfaithful,  and 
fails  to  give  satisfaction,  six  years'  term  of  office  will  prove  burden- 
some to  his  constituency.  On  the  other  hand,  the  representative 
term  is  so  short,  that  unfaithfulness  or  incompetency  will  cause  but 
comparatively  little  inconvenience  before  he  must  meet  his  constitu- 
ency at  the  ballot-box. 

4th.  On  the  Senate  rests  the  grave  responsibility  of  deciding  on 
the  fitness  of  executive  nominations  to  office. 

5th.  In  the  Senate  is  vested,  jointly  with  the  executive,  the  pre- 
rogative of  treaty-making. 

§  3.  Eligibility  to  the  senatorial  office  requires  a  United-States 
citizenship  of  nine  years.  This  feature  was  debated  in  the  Conven- 
tion with  gi'eat  spirit  and  earnestness.  Some  members  were  in  favor 
of  requiring  but  four  years,  some  seven,  some  nine,  some  ten,  others 
thirteen,  still  others  fourteen ;  and  a  few  preferred  that  American 
nativity  be  required.  Nearly  all  seemed  averse  to  admitting  stran- 
gers to  a  seat  in  the  Senate.  There  were  a  small  number  of  mem- 
bers, however,  in  favor  of  requiiing  no  specified  period,  but  simply 
that  the  incumbent  should  be  a  citizen. 

§  4.  No  one  can  regard  the  condition  a  hardship  that  requires  a 
residence  and  citizenship  of  sufficient  time  to  enable  the  party  to 
demonstrate  his  attachment  to  our  institutions,  and  form  of  govern- 
ment, and  to  give  evidence  of  his  determination  to  make  our  country 
his  permanent  home. 

§  5.  The  laws  of  Congress  require  five  years'  residence  before  an 
alien  can  become  naturalized,  and  the  Constitution  nine  yeai's'  citi- 
zenship before  he  can  hold  the  office  of  United-States  senator; 
making  fourteen  years'  residence  necessary  before  he  is  eligible  to  a 
seat  in  that  body. 

§  6.  That  a  senator  should  be  an  inhabitant  of  the  State  for 
which  he  is  chosen  is  a  condition  so  reasonable,  that  it  was  accepted 


1B2  ANALYSIS  OF  CIVIL  GOVERNMENT.      [Part  II. 

by  tbe  Convention  without  debate.  It  was  inserted  in  every  pro- 
posed draft  of  the  Constitution;  the  only  alteration  being  the  striking 
out  of  the  word  "  resident,"  and  inserting  the  word  "  inhabitant." 

§  7.  But  it  must  be  observed,  that  necessity  of  inhabitancy  is 
limited  to  the  time  when  chosen.  A  senator  chosen  for  New  York, 
for  instance,  does  not  vacate  his  seat  in  the  Senate  by  changing  his 
residence  to  any  other  State  during  the  term  for  which  he  was 
elected.  It  might  be  in  the  highest  degree  proper  that  he  should 
resign  ;  but  that  is  a  matter  within  his  own  discretion. 

§  8.  A  member  of  Congress  must  not  be  encumbered  with  any 
office  under  the  government  of  the  United  States.  If  he  holds  any 
such  office  at  the  time  of  his  election  to  Congress,  he  must  resign  it 
before  he  can  take  his  seat.  This  applies  to  membership  of  either 
house. 

§  9.  The  senatorial  office  is  not  an  office  under  the  government 
of  the  United  States  within  the  meaning  of  the  Constitution.  This 
was  decided  by  the  Senate  itself  at  a  very  early  period  (1799),  when 
Senator  Blount  was  impeached  by  the  House,  and  brought  before  the 
Senate  for  trial. 

§  10.  The  authors  of  the  Constitution  considered  the  duties  of 
any  office  under  the  United  States  as  incompatible  with  the  faithful 
discharge  of  the  duties  of  senator  or  representative.  In  several 
proposed  drafts  of  the  Constitution  in  the  Convention,  a  clause  was 
inserted,  rendering  a  member  of  either  house  inehgible  to  any  office 
under  the  United  States  for  several  years  after  the  expiration  of  his 
legislative  term.  But  it  was  finally  agreed  to  confine  the  disability 
to  the  period  of  membership. 

ART.  III. -TERM. 

The  senatorial  term  is  six  years.  8. 

§  1.  The  senatorial  term  was  another  subject  of  earnest  debate  in 
the  Convention,  and  on  which,  at  first,  there  was  great  difference  of 
opinion.  The  terms  of  three,  four,  five,  six,  seven,  and  nine  years, 
were  severally  proposed ;  and  each  had  its  advocates.  Several  mem- 
bers were  in  favor  of  extending  the  term  for  life,  or  during  good 
behavior. 


Part  II.]  THE  SENATE.  133 

§  2.  All  were  in  favor  of  a  term  sufficiently  long  to  insure  to  the 
office  dignity,  stability,  and  independence.  A  term  of  two  or  three 
years  was  believed  to  be  quite  too  short  for  a  fair  trial  on  any  meas- 
ure of  importance  on  which  there  might  be  an  almost  equal  division 
of  opinion. 

§  3.  On  the  other  hand,  it  was  contended  that  a  term  of  eight  or 
ten  years,  or  for  hfe,  might  lead  a  senator  to  forget  his  home  respon- 
sibility. He  might  be  psrsistent  in  measures  known  to  be  adverse 
to  the  best  interests  of  the  country,  merely  from  pride  of  opinion,  or 
from  the  more  objectionable  spirit  of  obstinacy.  Six  years  was  pro- 
bably not  the  choice  of  half  the  members  of  the  Convention ;  but 
that  term  was  adopted  as  a  compromise  of  the  extremes. 

ART.  IV.  — BY  WHOM  CHOSEN. 

£y  the  legislatures  of  the  several  States.  8. 

§  1.  There  were  several  propositions  in  the  Constitutional  Con- 
vention on  the  subject  of  this  article.  The  first  was  by  Edmund 
Randolph  of  Virginia,  who  opened  the  business  of  the  Convention. 
He  presented  an  outline  of  what  he  thought  the  new  Constitution 
should  contain.  In  that  outline,  it  was  proposed  that  the  senators 
should  be  elected  by  the  House  of  Representatives,  on  nomination 
by  the  legislatures  of  the  several  States. 

§  2.  A  second  plan  proposed  was,  that  the  senators  shall  be  cho- 
sen by  the  people  of  the  several  States,  by  direct  vote,  in  the  same 
manner  as  the  members  of  the  House  of  Representatives  are  chosen. 

§  3.  A  third  plan  was,  that  senators  shall  be  appointed  by  the 
President  of  the  United  States,  from  nominations  made  by  the  legis- 
latures of  the  several  States. 

§  4.  A  fourth  plan  proposed  to  unite  several  representative  dis- 
tricts into  a  senatorial  district,  and  let  the  people  elect  the  senators 
by  direct  vote. 

§  5.  A  fifth  plan  was,  that  the  people  by  direct  vote  elect  senato- 
rial electors,  and  that  these  electors  should  elect  the  senators. 

§  6.  And  still  another  plan  was,  that  United-States  senators  shall 
be  chosen  by  the  legislatures  of  the  several  States.  This  plan  pre- 
vailed.    The  principal  reason  that  led  to  a  decision  in  favor  of  this 


tH  ANALYSIS   OP  CIVIL  GOVERNMENT.     [Part  II. 

proposition  was,  that  senators  represent  their  respective  States  in 
their  political  capacity,  and  are  not  regarded  as  representatives  of 
the  people.  It  was  the  intention  of  the  authors  of  the  Constitution 
that  the  Senate  should  be  a  far  more  grave,  dignified,  and .  aristo- 
cratic body  than  the  House. 

MODE   OF    ELECTION   OF    SENATORS. 

Note.  —  By  act  of  Congress,  passed  July  26,  1866,  relating  to 
the  election  of  United-States  senators  by  the  State  legislatures,  it  is 
provided,  — 

1st.  That  each  House  shall,  by  a  vote  viva  voce  of  each  member 
present,*  on  the  sec(Hid  Tuesday  after  the  meeting  and  organization 
thereof,  name  a  person  for  senator. 

2d.  On  the  day  following,  the  two  houses  shall  meet  in  joint 
assembly ;  and,  if  the  same  person  shall  have  received  a  majority  of 
all  the  votes  cast  in  each  house,  he  shall  be  declared  duly  elected 
senator  of  the  United  States. 

3d.  If  no  person  has  received  such  majorities,  then  the  joint  as- 
sembly shall  choose,  by  a  viva  voce  vote,  a  person  for  senator ;  and 
the  person  who  shall  receive  a  majority  of  all  the  votes  of  the  joint 
assembly,  a  majority  of  the  members  of  each  house  being  present, 
shall  be  declared  duly  elected. 

4th.  If  such  senator  is  not  elected  on  the  first  day,  the  joint  as- 
sembly shall  meet,  and  take  at  least  one  vote  per  day,  during  the 
entire  session  of  the  legislature,  or  until  a  senator  shall  be  elected 
-  5th.  In  relation  to  vacancies,  the  act  provides,  that,  when  one 
exists  at  a  meeting  of  the  legislature,  the  same  proceedings  shall 
be  had  on  the  second  Tuesday  after  their  meeting  and  organization. 

6th.  When  a  vacancy  shall  happen  during  the  session  of  the 
legislature,  like  proceedings  shall  be  had,  beginning  with  the  second 
Tuesday  after  notice  of  such  vacancy  shall  have  been  received. 

7th.  The  Governor  of  the  State  shall  certify  the  election  of  a 
senator  to  the  President  of  the  United  States. 

ART.  v.  — WHEN  CHOSEN. 

One-third  the  number  of  senators  shall  he  chosen  every 
second  year.   O. 


Part  II.]  THE  SENATE.  185 

This  must  necessarily  be  so,  on  account  of  the  mode  of  classifying 
the  senators  which  the  Constitution  prescribes,  and  which  it  directs 
to  take  place  at  the  first  organization  of  the  Senate  under  the  new 
government.  Only  one-third  of  the  senators  being  chosen  every 
second  year,  and  but  one-third  retiring  every  second  year,  the  Senate 
must  always  be  constituted  of  members,  one-third  of  whom  have  had 
at  least  four  years  of  legislative  experience,  and  of  another  third 
who  have  had  at  least  two. 

ART.  VI. -HOW  CLASSED. 

Immediately  after  they  shall  be  assembled  in  consequence 
of  the  fii'st  election^  they  shall  be  divided  as  equally  as  may 
be  into  three  classes :  — 

1.  The  seats  of  the  senators  of  the  first  class  shall  be  vacated 

at  the  expiration  of  the  second  year. 

2.  Of  the  second  class,  at  (he  expiration  of  the  fourth  year, 

3.  Of  the  third  class,  at  the  expiration  of  the  sixth  year.  O. 
§  1.  There  was  unanimity  of  opinion  in  the  Constitutional  Con- 
vention on  the  propriety  of  rendering  the  Senate  a  perpetual  body. 
The  prerogatives  with  which  it  is  invested,  and  the  duties  required 
of  it,  render  this  indispensable  ;  and  it  was  therefore  agreed  to  with 
but  little  or  no  discussion. 

§  2.  The  number  of  senators  at  first  was  twenty-six,  there  being 
thirteen  States  in  the  Union,  and  two  senators  from  each  State ; 
though  all  were  not  present  at  the  first  classification.  Were  each 
of  these  senators  to  serve  for  six  years,  their  terms  would  all  expire 
at  the  same  time.  But  the  plan  was,  that  one-third  should  retire 
every  second  year :  hence  it  was  necessary  to  adopt  some  method 
by  which  to  determine  who  should  go  out  at  the  end  of  two  years, 
who  at  the  end  of  four,  and  who  at  the  end  of  six. 

§  3.  The  first  proposition  before  the  Convention  was,  that  this 
should  be  done  by  lot ;  and  it  was  so  inserted  in  the  proposed  draft 
of  the  Constitution.  But  this  was  erased  on  motion  of  Mr.  Madi- 
son, so  as  to  leave  the  Senate  at  liberty  to  adopt  some  method  by 
which  to  prevent  the  election  of  two  senators  at  the  same  time,  and 
from  the  same  State,  for  a  full  term  of  six  years. 


iM  ANALYSIS   OF  CIVIL  GOVERNMENT.     [Part  II. 

§  4.  It  should  be  remarked  here,  that  when  a  new  State  is 
admitted  into  the  Union,  and  it  chooses  two  senators,  the  legisla- 
ture of  the  State  designates  which  shall  serve  for  the  shorter,  and 
which  for  the  longer  term. 

At  the  first  session  of  Congress  under  the  Constitution,  the 
division  of  the  senators  into  three  classes  was  made  in  the  follow- 
ing manner  :  — 

1st.  The  senators  present  were  divided  into  three  classes  by  name ; 
the  first  consisting  of  six  persons,  the  second  of  seven,  and  the 
third  of  six.  (Two  or  three  senators  had  not  yet  reached 
the  seat  of  government ;  and  it  will  be  remembered  that  Rhode 
Island  and  North  Carolina  had  not  yet  ratified  the  new 
Constitution. ) 
2d.  Three  papers  of  an  equal  size,  numbered  one,  two,  and  three, 
were,  by  the  secretary,  rolled  up  and  put  into  a  box,  and 
drawn  by  a  committee  of  three  persons  chosen  for  the  purpose  in 
behalf  of  the  respective  classes  in  which  each  of  them  was  placed. 
3d.  The  classes  were  to  vacate  their  seats  in  the  Senate  according 
to  the  order  of  the  numbers  drawn  for  them,  beginning  with 
number  one. 
4th.  It  was  also  provided,  that,  when  senators  should  take  their 
seats  from  States  which  had  not  then  appointed  senators,  they 
should  be  placed  by  lot  in  the  foregoing  classes,  but  in  such  a 
manner  as  should  keep  the  classes  as  nearly  equal  as  possible. 
5th.  In  arranojinoj  the  orio-Inal  classes,  care  was  taken  that  both 
senators  from  the  same  State  should  not  be  in  the  same  class, 
so  that  there  never  should  be  a  vacancy,  at  the  same  time,  of 
the  seats  of  both  senators.^ 

ART.  VII.  — VACANCIES. 

If  vacancies  happen  by  resignation,  or  otherwise^  during 
the  recess  of  tJie  legislature  of  any  State,  — 

1.  77ie  executive  thereof  may  make  temporary  appointments 

nntil  the  next  meeting  of  the  legislature. 

2.  The  legislature  shall  then  fill  such  vacancies.  O. 

1  Story  on  Const.,  §  726. 


Part  II.]  THE  SENATE,  137 

§  1.  If  vacancies  happen  while  the  legislature  of  the  State  whose 
seats  are  thus  vacated  is  in  session,  the  legislature  will  fill  the 
vacancies  without  official  action  on  the  part  of  the  governor  or 
executive.  The  governor  has  no  authority  in  the  case  while  that 
body  is  in  session,  —  not  even  to  appoint  for  a  single  day. 

§  2.  He  has  no  appointing  power  in  anticipation  of  a  vacancy 
soon  to  occur.  He  must  wait  until  it  actually  happens.  The 
Senate  itself  has  decided  this  question.  It  is  also  doubtful  if  the 
legislature  could  choose  a  senator  in  anticipation  of  a  vacancy. 

§  3.  The  senator  chosen  to  fill  a  vacancy  does  not  hold  for  the 
term  of  six  years,  but  until  the  expiration  of  his  predecessor's  term 
only. 

ART.  VIII.  — VOTE. 

Each  senator  shall  have  one  vote.   8. 

This  clause  would  seem  to  be  superfluous,  unless  it  be  remem- 
bered, that,  under  the  Confederation,  each  State,  whatever  the  num- 
ber of  its  members  in  Congress,  had  but  one  vote  ;  and,  if  less  than 
two  members  were  present,  it  had  no  vote.  The  States  were  each 
allowed  from  two  to  seven  members ;  and,  if  their  delegation  was 
equally  divided,  they  lost  their  vote.  One  member  was  incapable 
of  voting  alone. 

It  was  the  intention  of  the  Constitution  to  give  equality  of  suffrage 
in  the  Senate ;  with  the  further  advantage,  that  a  senator  shall  not 
lose  his  vote,  nor  his  State  go  entirely  unrepresented,  on  account  of 
the  absence  of  one  of  the  members  from  the  senate-chamber. 

ART.   IX.  —  PRESIDING   OFFICER. 

1.  The  Vice-President  of  the   United  States  shall  he  Presi- 

dent of  the  Senate. 

2.  He  shall  have  no  vote^  unless  they  he  equally  divided.    11. 
8.   The  Senate  shall  choose  a  president  pro  tempore  i7i  the  ah- 

sence  of  the  Vice-President^  or  when  he  shall  exercise 
the  office  of  President  of  the  United  States.    IS. 
§   1.  There  was  strong  opposition  in  the  Constitutional  Conven- 
tion to  creating  any  such  office  as  the  Vice-Presidency ;  and,  when 
this  point  was  carried,  there  was  considerable   opposition   to  the 


1^  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Pakt  II. 

proposition  making  the  Vice-President  the  President  of  the  Senate : 
though  this  last  met  with  less  hostility  than  the  first ;  only  two 
States  voting  against  it. 

§  2.  At  first,  it  was  intended  to  allow  the  Senate  to  choose  their 
own  presiding  officer;  but  afterwards,  when  the  Convention  con- 
sidered a  second  feature  of  the  provision,  — which  was,  that  in  case 
of  the  death,  removal,  or  disability  of  the  President  of  the  United 
States,  the  President  of  the  Senate,  as  was  proposed,  was  to  perform 
the  duties  of  the  office  thus  made  vacant,  —  the  Vice-Presidency 
met  with  more  favor. 

§  3.  As  presiding  officer  over  the  Senate,  it  was  believed  that  he 
would  be  more  impartial  in  his  decisions  than  that  officer  would 
were  he  a  member  of  their  own  body.  He  might,  in  that  case,  be 
too  much  influenced  by  the  interest  he  would  feel  in  his  own  State. 
But  how  his  being  Vice-President,  instead  of  senator,  would  deprive 
him  of  this  feeling  of  State  interest,  was  not  shown;  nor  was  it 
shown  why  the  same  objection  might  not  apply  as  against  the  Speaker 
of  the  House  of  Representatives,  who  is  a  member  of  that  body. 

It  seems  more  reasonable  that  the  Constitution  places  that  officer 
over  tlie  Senate  "for  want  of  something  else  to  do  "  while  there  is 
a  President  of  the  United  States. 

§  4.  The  Vice-President  has  no  vote  in  the  Senate  unless  they 
are  equally  divided.  It  is  difficult  to  understand  why  he  should 
have  a  vote  even  in  such  cases,  since  he  is  not  a  member  of  the 
Senate.  A  measure  that  can  not  be  carried  affirmatively  by  a  ma- 
jority of  the  members  of  a  legislative  body,  especially  after  thorough 
discussion,  it  is  generally  presumed,  ought  to  fail. 

§  5.  The  Vice-President's  vote,  therefore,  can  never  be  given  but 
to  aid  the  affirmative.  When  the  Senate  is  equally  divided,  the 
proposed  bill  or  measure  has  failed  unless  the  Vice-President  comes 
to  its  rescue.  An  equal  division  in  the  other  house  defeats  any 
proposition  in  legislative  proceedings. 

§  G.  The  President  pro  tempore  of  the  Senate  is  an  officer  of 
that  body,  chosen  by  its  members,  from  among  themselves,  in  the 
absence  of  the  Vice-President,  or  when  he  shall  exercise  the  duties 
of  the  presidential  office. 


Part  II.]  THE  SENATE.  139 

§  7.  Three  times  in  our  history,  the  Vice-President  has  been 
.called  to  perform  the  duties  of  the  President  on  the  death  of  that 
oflficer.  Gen.  Harrison  died  April  4,  1841, — just  one  month  after 
his  inauguration  ns  President  of  the  United  States.  He  was  suc- 
ceeded by  John  Tyler,  the  Vice-President.  Gen.  Taylor  was 
inaugurated  March  5,  1849 ;  and  died  July  9,  1850.  He  was  suc- 
ceeded by  Millard  Fillmore.  Abraham  Lincoln  died  April  15, 
1865,  having  been  inaugurated  the  second  time,  March  4,  1865  ; 
and,  on  his  death,  was  succeeded  by  Andrew  Johnson. 

§  8.  It  is  customary,  when  we  have  a  new  Vice-President,  for 
that  officer  to  vacate  his  chair  just  before  the  close  of  the  first  ses- 
sion of  the  Senate,  after  his  inauguration,  to  give  them  an  oppor- 
tunity to  elect  a  president  pro  tempore.  This  is  done,  that,  in  case 
the  Vice-President  shall  be  called  to  the  duties  of  the  President,  the 
Senate  will  not  be  left  without  a  presiding  officer. 

§  9.  The  President  pro  tempore  of  the  Senate  is  sometimes 
called  the  Vice-President  of  the  United  States.  This  is  often 
done,  doubtless,  by  way  of  courtesy,  but  sometimes  because  he  la 
really  thought  to  be  in  fact  such  officer.     But  this  is  a  mistake. 

§  10.  Although,  in  case  of  the  death,  removal,  or  disability,  both 
of  the  President  and  Vice-President,  the  President  pro  tempore  of 
the  Senate  would  exercise  the  duties  of  President,  he  is  by  no 
means  cither  Vice-President  or  President.  It  does  not  make  him 
Vice-President  simply  because,  in  a  certain  contingency,  he  may  be 
called  to  perform  the  duties  of  President :  if  so,  we  have  had  two, 
if  not  three,  Vice-Presidents  most  of  the  time  during  our  history ; 
for  the  Speaker  of  the  House  may  become  acting  President  also. 

§  11.  The  President  pro  tempore  it  is  never  pretended  is  Vice- 
President  of  the  United  States,  unless  the  Vice-President  has  died, 
or  succeeded  to  the  Presidency  ;  as  in  the  cases  of  Tyler,  Fillmore, 
and  Johnson,  before  cited.  The  Vice-President  is  an  officer  of  the 
United  States ;  and  no  officer  of  the  United  States,  the  Constitution 
says,  sliall  be  a  member  of  either  House  of  Congress.  But  the 
President  pro  tempore  of  the  Senate  is  a  member  of  the  Senate. 

§  1 2.  The  President  pro  teinpore  of  the  Senate  must  vote  on  the 
call  of  the  yeas  and  nays  the  same  as  any  other  member :  on  the 


14P  ANALYSIS  OF   CIVIL  GOVERNMENT.     [Part  II. 

contrary,  the  Vice-President  never  can  vote  except  in  cases  when 
the  Senate  is  equally  divided. 

§  13.  The  Vice-President  must  be  at  least  thirty-five  years  of 
age,  the  same  as  the  President ;  for  the  Constitution  declares  that 
**  no  person  constitutionally  ineligible  to  the  office  of  President 
shall  be  eligible  to  that  of  Vice-President  of  the  United  States : " 
but  a  President  pro  tempore  of  the  Senate  need  not  be  over  thirty. 
The  Vice-President  must  be  native  born,  or  a  citizen  of  the  United 
States  at  the  adoption  of  the  Constitution  :  the  President  pro  tem- 
pore of  the  Senate  need  not  be  either.  Any  member  of  the  Senate 
is  eligible  to  the  presidency  pro  tempore  of  that  body. 

§  14.  The  Vice-President,  in  case  of  the  death  of  the  President, 
serves  out  the  entire  balance  of  the  term  for  which  the  Presi- 
dent and  Vice-President  were  elected  :  on  the  contrary,  the  President 
pro  tempore  of  the  Senate,  in  case  he  succeeds  to  the  duties  of 
President,  serves  only  until  a  President  can  be  elected,  or  until  the 
disability  of  the  officer  whom  he  has  succeeded  shall  be  removed. 

§  15.  The  Vice-President  can  be  removed  from  office  by  im- 
peachment only.  The  President  pro  tempore  of  the  Senate  is  not 
a  United- States  officer,  and  can  not,  therefore,  be  impeached.  The 
Senate  has  decided  that  a  member  of  Congress  is  not  impeachable. 

§  16.  The  Constitution  recognizes  but  two  modes  of  electing  a 
Vice-President  :  — 

1st.  By  electors  of  President  and  Vice-President  of  the  United 
States. 

2d.  When  the  electors  fail  to  elect  a  Vice-President,  the  Senate 
shall  elect  one  ;  but  this  officer  is  not  the  President  pro  tempore  of 
the  Senate. 

§  17.  The  term  of  the  President  pro  tempore  of  the  Senate  can 
not  continue  beyond  his  senatorial  term  ;  as  in  the  case  of  Senator 
Foster  of  Connecticut,  President  pro  tempore  of  the  Senate,  whose 
term  expired  March  4,  1867  :  but  the  Vice-Presidency  expires  at 
the  end  of  the  presidential  term  only. 

§  18.  If  the  President  pro  tempore  of  the  Senate  is  Vice-Presi- 
dent of  the  United  States,  there  were  two  Vice-Presidents  for  some 
forty  days  after  Mr.  Foster's  election  to  that  position ;  for  he  was 


Part  II.]  THE  SENATE.  141 

elected  while  Andrew  Johnson  was  yet  Vice-President,  and  before 
President  Lincoln's  death. 

§  19.  These  are  regarded  as  conclusive  proofs,  drawn  chiefly 
from  the  Constitution  itself,  that  the  President  pro  tempore  of  the 
Senate  is  not  Vice-President  of  the  United  States,  even  when  the 
Vice-President  proper  has  succeeded  to  the  Presidency  ;  nor  does 
the  Constitution  anywhere  intimate  that  this  officer  of  the  Senate  is 
to  be  so  regarded.  It  is  only  by  a  law  of  Congress  that  he  suc- 
ceeds even  to  the  temporary  performance  of  the  duties  of  the  Presi- 
dency, in  case  of  the  death,  removal,  or  other  disability,  both  of 
the  President  and  Vice-President. 

(List  of  Presidents  of  the  Senate  pro  tempore,  Cliap.  XV.,  Art.  IX.,  Part  II.) 

art.  x.  —  senate-powers. 

1.  Legislative. 

IsL   Co-ordinate  with  the  House  of  Representatives  in 

general  legislation.   2o 
2d.   May  propose  or  concur  with  amendments  to  bills 

for  raising  revenue.   S3. 

2.  Executive. 

1st.  To  ratify  treaties  proposed  by  the  President  of  the 
United  States,  two-thirds  of  the  senators  p>resent 
concurring. 
2d.   To  confirm  the  folloxoing  officers  when  nominated 
by  the  President  of  the  United  States:  — 
1st.  Ambassadors^  other  public  ministers,  a^id  consuls. 
2d.  Judges  of  the  Supreme  Court. 
3d.   All  other  officers  of  the  United  States  whose  ap- 
pointments are  not  otherwise  provided  for  by 
the    Constitution,  and  which   shall  be  estab- 
lished by  law.  61. 

3.  Elective. 

1st.  Excepting  their  president,  they  shall  choose  their 
officers,  and  also  a  president  pro  tempore    11,  IS. 

2d.  When  the  electors  of  President  and  Vice-President 
of  the  United  States  fail  to  elect  a  Vice-Presi- 
dent, the  Senate  shall  choose  one.  9«$. 


l-ia^  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  11. 

4.  Judicial. 

1st.  The  Senate  has  the  sole  power  to  try  all  impeachmenta 

lohen  sitting  for  that  purpose  on  oath  or  affirmation, 

2d.  The  Chief  Justice  shall  preside  when  the  President 

of  the  United  States  is  tried, 
^d.  Without  the  concurrence  of  two-thirds  of  the  mem- 
bers present^  710  person  shall  be  convicted.   IS, 
ith.  May  render  judgment  no  further  than^  — 
\st.   To  removal  fro7n  office  ;  and^ 
2d.    Disqualification  to  hold  and  enjoy  any  office 
of  honor ^  trusty  or  profit  under  the  United 
States.   14. 

1.- LEGISLATIVE. 

§  1.  The  Constitution  makes  no  general  distinction  between  the 
powers  of  the  two  houses  in  legislation.  It  vests  all  legislative 
power  in  a  Congress  of  the  United  States,  consisting  of  a  Senate 
and  House  of  Representatives. 

§  2.  But  there  is  one  power  relating  to  legislation  vested  in  the 
House  exclusively  ;  and  that  is  the  power  to  originate  bills  for  raising 
revenue.  Yet,  when  these  bills  reach  the  Senate,  that  branch  of  the 
legislative  power  may  treat  them  in  all  respects  as  though  they 
originated  there.  They  can  propose  amendments,  concur  with 
amendments,  or  reject  them,  if  proposed  by  the  House,  at  any  stage 
of  the  proceedings  ;  or  they  can  reject  the  bills  altogether. 

§  3.  The  Constitution  simply  requires  that  this  class  of  legislation 
shall  originate  with  the  House ;  beyond  which,  that  branch  has  no 
more  legislative  authority  than  the  Senate.  The  reasons  for  this  dis- 
tinction are  noticed  in  treating  of  the  house-powers. 

2.  — EXECUTIVE. 

§  4.  In  reference  to  the  treaty-making  power,  particularly  as  to 
where  it  should  be  vested,  there  were  three  classes  of  views  ad- 
vanced in  the  Convention. 

The  first  proposition  was  to  place  it  exclusively  in  the  Senate. 

The  second,  exclusively  in  the  President. 

The  third  (and  this  prevailed),  to  vest  it  in  the  hands  of  tho 
President  and  Senate. 


Part  II.]  THE  SENATE.  1-^3 

§  5.  When  it  was  finally  settled  to  place  this  prerogative  in  the 
hands  of  the  President  and  Senate,  a  new  question  arose,  on 
which  there  was  considerable  difference  of  opinion  :  Shall  it  require 
a  bare  numerical  majority  of  the  senators  present  to  ratify  a  treaty 
when  proposed  by  the  President  ?  or  shall  it  require  a  two-third  ma- 
jority? At  length,  the  plan  was  adopted  requiring  a  two-third 
majority. 

§  6.  There  was  then  a  proposition  made  to  modify  the  treaty- 
making  power  with  regard  to  treaties  of  peace.  On  this  subject 
there  were  four  parties. 

One  was  for  giving  the  whole  power  over  treaties  of  peace  into 
the  hands  of  the  President. 

A  second  was  for  vesting  it  in  the  Senate,  but  requiring  a  two- 
third  majority. 

A  third,  for  vesting  it  in  the  Senate,  requiring  only  a  numerical 
majority. 

A  fourth  was  for  placing  it  with  the  President  and  the  Senate, 
requiring  a  two-third  senatorial  majority  as  in  all  other  cases. 

This  last  view  was  adopted.  The  ratification  of  any  and  all 
treaties  proposed  by  the  Executive  requires  the  votes  of  two-thirds 
of  all  the  senators  present. 

§  7.  A  treaty  is  an  agreement  or  contract  between  two  or  more 
nations,  entered  into  with  proper  formahty  and  solemnity,  defining 
the  rights  of  the  respective  parties  thereto  with  regard  to  trade, 
commerce,  boundaries,  or  with  reference  to  the  protection  of  their 
mutual  interests  against  invasion  from  other  powers. 

§  8.  The  terms  of  treaties  are  usually  agreed  upon  either  by  com- 
missioners appointed  by  their  respective  governments  for  the  specific 
purpose  of  arranging  the  details,  or  by  ambassadors  or  other  public 
ministers. 

§  9.  Treaties  are  discussed  by  the  Senate  in  secret  session.  They 
can  ratify  or  reject  a  treaty,  or  ratify  it  in  part  and  reject  it  in  part ;  or 
they  can  make  additions  to  it.  Every  part  of  a  treaty,  to  be  valid, 
must  be  ratified  by  a  vote  of  two-thirds  of  the  senators  present. 
When  amendments  to  or  alterations  of  the  treaties  have  been  made 
by  the  Senate,  the  whole  document  must  be  re-submitted   to  the 


144  ANALYSIS   OF   CIVIL  GOYEENMENT.     [Part  11. 

President,  and  also  to  the  foreign  government  with  whom  negotiations 
are  pending. 

§  10.  The  President  must  submit  the  nominations  of  certain 
classes  of  officers  to  the  Senate  for  their  advice  and  consent.  The 
Senate  may  confirm  or  reject  a  nomination  made  by  the  President; 
thouo-h  it  is  usual,  in  deference  to  the  Executive,  to  confirm,  unless 
there  is  a  palpable  unfitness  in  the  nomination.  The  Senate's  advice 
and  consent  are  to  be  asked,  on  the  nomination,  by  the  President,  of 
ambassadors,  other  public  ministers  and  consuls,  judges  of  the  Supreme 
Court,  and  all  other  officers  of  the  United  States  whose  appointments 
are  not  otherwise  provided  for  in  the  Constitution,  and  which  shall 
be  established  by  law. 

§  11.  It  will  be  seen,  by  reference  to  the  powers  of  Congress, 
that  the  appointment  of  such  inferior  officers  as  they  shall  think 
proper  may  be  vested  in  the  President  alone,  in  the  courts  of  law, 
or  in  the  heads  of  departments. 

§  12.  On  the  subject  of  appointments,  especially  of  the  judges 
of  the  Supreme  Court,  members  of  the  Constitutional  Convention 
were  divided  in  opinion. 

One  class  of  opinions  was  in  favor  of  giving  the  appointments  to 
the  Executive  alone. 

A  second  preferred  that  they  should  be  vested  in  the  Senate 
alone. 

A  third  proposed  that  the  nomination  should  be  made  by  the 
Sanate,  allowing  the  President  a  negative,  but  giving  the  Senate 
the  power  to  overrule  his  negative  by  a  two-third  majority. 

A  fourth  was  (and  this  prevailed),  to  give  the  nomination  to  the 
President,  and  the  power  of  confirmation  or  rejection  by  a  majority 
to  the  Senate ;  and  ambassadors,  other  public  ministers,  and  consuls, 
were  included  with  the  judges  of  the  Supreme  Court. 

S.— ELECTIVE. 

§  13.  The  Senate  has  the  power  to  elect  its  officers,  except  the 
president  thereof,  who  holds  this  position  by  virtue  of  his  being  Vice- 
President  of  the  United  States.  They  are  required  by  the  Consti- 
tution to  choose  a  president  pro  tempore  also.     Deliberative  bodies, 


Part  II.]  THE  SENATE.  145 

with  few  exceptions,  elect  their  own  officers ;  and  this  is  necessary 
to  their  independence.  Here  is  one  of  the  exceptions  to  the  general 
rule,  however,  that  the  Vice-President  is,  ex  officio,  President  of  the 
Senate. 

§  14.  Besides  the  president  'pro  tempore,  the  Senate  officers  are 
a  secretary,  who  keeps  the  record  or  journal,  has  charge  of  the 
papers,  and  reads  such  as  he  may  be  called  upon  by  the  members  to 
read ;  a  sergeant-at-arms,  who  sees  that  orders  of  the  Senate  are  exe- 
cuted ;  a  postmaster,  who  sees  to  the  maihng  and  distributing  let- 
ters and  papers  for  the  members  ;  and  a  door-keeper,  who  has  charge 
of  the  doors. 

§  15.  These  officers,  except  the  president  pro  tempore,  are  not 
specified  in  the  Constitution,  and  are  not  elected  from  among  the 
members  of  the  Senate. 

§  16.  As  a  last  resort,  the  Senate  elects  a  Yico-President  of  the 
United  States.  This  is  not  done,  however,  until  an  attempt  to  elect 
this  officer  on  the  part  of  electors  chosen  by  the  people  has  resulted 
in  a  failure.  An  election  of  a  Vice-President  by  the  Senate  has 
taken  place  in  the  history  of  our  government  but  once  :  in  1837, 
Richard  M.  Johnson  was  elected  by  the  Senate. 

4. -JUDICIAL. 

§  17.  The  Constitution  vests  in  the  Senate  the  sole  power  to  try 
all  impeachments.  To  this  provision  there  was  very  earnest  opposi- 
tion in  the  Constitutional  Convention.  Three  different  classes  of 
views  were  maintained  on  this  subject :  — 

1st.  That,  as  a  trial  of  impeachment  is  a  judicial  proceeding,  it 
ought  to  be  committed  to  the  Supreme  Court,  or  some  other  tribunal 
learned  in  the  law. 

2d.  Others  maintained  that  it  was  not  wholly  judicial ;  and  therefore 
they  preferred  to  have  it  submitted  to  the  Supreme  Court,  united 
with  some  other  tribunal  for  that  purpose  appointed. 

3d.  Still  othei-s  (and  for  this  proposition  there  was  a  majority)  in- 
sisted that  the  trial  of  impeachment  should  be  vested  exclusively  in 
the  Senate. 

§  18.  When  trying  irapcaclmients,  the  Senate  sits  as  a  court;  and 

10 


146  ANALYSIS   OF  CIVIL  GOVERNMENT.     [Part  II. 

from  their  decision  there  is  no  appeal.  They  organize  anew,  and 
take  a  special  oath  or  affirmation  applicable  to  the  proceeding. 

§  19.  When  the  President  of  the  United  States  is  tried,  the 
Chief  Justice  shall  preside.  This  clause  was  not  debated  in  the  Con- 
vention that  formed  the  Constitution ;  and  therefore  the  precise  rea- 
sons for  its  insertion  are  not  apparent.  It  has  been  suggested  by 
able  writers,  that  the  Vice-President  should  not  preside  on  such  an 
occasion,  because  he  has  a  direct  interest  in  the  President's  convic- 
tion. It  has  also  been  maintained  by  a  very  learned  senator,  that, 
when  the  President  shall  be  on  trial  for  impeachment,  he  should  be 
suspended  from  office  for  the  time  being,  and  until  the  result  shall  be 
declared  :  and  that  this  state  of  thinojs  would  brin":  the  Vice-Presi- 
dent  to  the  presidential  chair.  In  such  case,  he  could  not  preside 
over  the  trial  of  the  President. 

§  20.  Perhaps  one  or  even  both  of  the  foregoing  reasons  may 
have  influenced  the  authors  of  the  Constitution  to  make  this  pro- 
vision. There  is  still  another  reason  that  may  have  had  something 
to  do  with  its  oriorin.     The   President  of  the  United  States  is  the 

o 

highest  officer  under  our  government ;  and  it  may  have  been  thought 
in  the  highest  degree  proper  and  befitting,  that,  if  brought  to  trial  on 
impeachment,  the  highest  judicial  officer  should  preside  over  the 
solemn  deliberations  of  such  an  august  proceeding. 

§  21.  It  requires  a  majority  of  two-thirds  of  the  members  present 
to  convict  a  party  on  impeachment.  This  was  believed  to  be  neces- 
sary in  order  to  guard  against  hasty  and  inconsiderate  decisions,  and 
to  prevent  convictions  from  party  zeal  and  political  bias  and  pre- 
judice. So  large  a  majority,  moreover,  would  be  more  likely  to 
command  the  respect  and  peaceable  acquiescence  of  the  whole 
country. 

§  22.  The  Constitution  limits  the  punishment  to  be  inflicted  by 
the  senate  on  impeachment,  — 

1st.  To  removal  from  office  ;  and, 

2d.  To  disqualification  to  hold  and  enjoy  any  office  of  honor, 
trust,  or  profit  under  the  United  States.  But  we  shall  see  in  another 
chapter,  that  the  party  convicted  can  not  plead  his  conviction  by  the 
senate  in  bar  to  further  trial,  condemnation,  and  punishment  by 
the  courts  of  law. 


Part  II.]  THE  SENATE.  147 

§  23.  As  we  have  seen,  the  impeachment  is  preferred  by  the 
House  of  Hepresentatives,  and  is  in  the  nature  of  an  indictment,  spe- 
cifically charging  the  accused  with  the  commission  of  certain  crimes 
or  misdemeanors  in  office.  The  articles  of  impeachment  are  brought 
to  the  notice  of  the  Senate  by  a  committee  appointed  for  that  pur- 
pose by  the  House  of  Representatives. 

§  24.  The  Senate  issues  a  summons,  citing  the  party  accused  to 
appear  before  them  on  a  day  and  hour  therein  specified  ;  which  sum- 
mons is  served  on  the  party  accused  by  the  sergeant-at-arms  of  the 
Senate. 

§  25.  When  the  accused  appears  at  the  bar  of  the  Senate,  either 
in  person  or  by  counsel,  in  obedience  to  the  summons,  he  is  informed 
of  the  impeachment  brought  against  him  by  the  House,  a  copy  of  the 
charges  are  given  to  him,  and  he  is  allowed  time  to  prepare  his  an- 
swer. 

§  26.  When  he  has  answered  to  the  charges  specified  in  the  im- 
peachment, the  House  replies  to  the  answer  through  its  committee, 
and  asserts  its  readiness  to  prove  them.  Time  is  given  the  accused 
to  prepare  for  trial,  and  he  is  allowed  to  have  the  assistance  of  coun- 
sel. The  trial  proceeds  substantially  according  to  the  usual  forms 
and  method  observed  in  the  higher  courts  of  law. 

§  27.  When'  the  evidence  in  the  case  and  the  arguments  are  con- 
cluded, each  senator,  on  the  call  of  his  name,  and  on  each  article  of 
the  impeachment,  votes  yea  or  nay  on  the  guilt  of  the  accused.  If 
two-thirds  of  all  the  senators  present  find  him  guilty  of  any  or  all  of 
the  charges  specified,  sentence  is  pronounced  accordingly. 

§  28.  In  pronouncing  sentence,  the  first  question  put  to  each 
senator,  on  answering  to  his  name,  is,  "  Shall  the  accused  be  removed 
from  the  office  which  he  holds  ?  "  On  this  question,  each  senator 
answers  yea  or  nay. 

The  second  question  is,  "  Shall  the  accused  be  disqualified  to 
hold  and  enjoy  any  office  of  honor,  trust,  or  profit  under  the  United 
States?  "  On  this  question,  each  senator  answers  yea  or  nay ;  and 
judgment  is  rendered  accordingly,  and  can  extend  no  further. 


148  ANALYSIS   OF  CIVIL  GOVERNMENT.     [Part  II. 

CHAPTER  III. 

PROVISIONS   COMMON  TO  BOTH  HOUSES. 

ARTICLE  I.  — MEMBERSHIP. 

Each  house  shall  he  the  judge  of  the  elections^  returns^  and 
qualifications  of  its  own  members,   V7, 

§  1.  These  are  powers,  which,  from  the  necessity  of  the  case, 
must  be  vested  in  the  house  where  membership  is  claimed.  It  is 
necessary  to  settle  the  legality  and  regularity  of  the  election  ;  other- 
wise any  person  might  intrude  himself  into  either  house  without  the 
least  show  of  authority.  Regularity  and  legality  of  election  can  be 
determined  only  by  an  inquiry  into  the  election  through  the  returns, 
which  opens  the  whole  subject  for  investigation  ;  for,  in  ascertain- 
ing the  validity  of  the  returns,  it  may  be  necessary  to  go  back  of 
them,  and  inquire  into  the  legality  of  the  election  itself 

§  2.  It  is  quite  possible  that  a  person  might  be  legally  and  reg- 
ularly elected,  and  yet  be  wholly  disqualified  for  a  seat  in  either 
house.  His  moral  character  might  be  such  as  to  bring  a  reproach 
upon  the  house  of  which  he  should  become  a  member.  He  might 
be  known  for  treachery  and  disloyalty  to  the  government,  and  for 
the  most  persistent  efforts  to  betray  its  trusts  and  to  sacrifice  its 
interests.  Or  he  might  lack  any  or  all  those  qualifications  which 
the  Constitution  requires  to  render  a  person  eligible  to  the  member- 
ship in  question. 

§  3.  The  power  of  determining  the  right  to  membership  belongs 
not  only  to  each  house  of  Congress  by  express  constitutional  pro- 
vision, but  like  authority  is  conceded  to  the  legislative  bodies  of  all 
the  States,  and  to  kindred  bodies  under  all  free  governments. 

ART.  II.  — QUORUM. 

1.  A  mxijority  of  either  house  is  a  quorum  to  do  business, 

2.  A  smaller  number  may  adjourn  from  day  to  day. 

3.  A  smaller  number  may  be  authorized  to  compel  the  at- 

tendance of  absent  members  in  such  manner  and  under 
such  penalties  as  each  house  may  provide.    17. 


Part  II.]  COMMON  TO  BOTH  HOUSES.  149 

§  1.  It  is  indispensable  that  the  Constitution  specify  the  number 
necessary  to  do  business ;  otherwise  a  reckless  and  intriguing  minori- 
ty might  take  advantage  of  the  absence  of  the  majority,  and  usurp 
the  functions  of  legislation  by  enacting  repugnant  and  odious  laws, 
or  by  repealing  those  most  acceptable  to  the  people. 

§  2.  On  the  contrary,  if  a  smaller  number  could  not  adjourn 
from  day  to  day,  or  compel  the  attendance  of  absent  members,  the 
whole  business  of  legislation  might  be  suspended  at  the  pleasure  of 
a  few  refractory  absentees.  The  necessity  of  these  three  provisions 
in  reference  to  business,  therefore,  must  be  evident  at  a  glance. 

ART.  in.  — JOURNAL. 

1.  Each  house  shall  keep  a  journal  of  its  proceedings. 

2.  They  shall  publish  the  same  from  time  to  time^  except  such 

parts  as  in  their  judgment  shall  require  secrecy.    1^, 

§  1.  These  provisions  impose  a  salutary  restraint  upon  the  mem- 
bers of  the  two  houses.  In  a  certain  sense,  they  bring  representative 
and  constituent  face  to  face.  What  is  done  to-day  in  the  legislative 
halls  of  the  nation  is  transferred  to-morrow  to  the  coluums  of  the 
press,  and  carried  abroad  in  the  mail-bags  all  over  the  land.  We 
know  to-morrow  what  our  senator  or  representative  has  done  to-day. 
Legislators  are  thus  compelled  to  act  under  a  high  sense  of  their 
political  responsibility. 

§  2.  But  there  are  proceedings,  or  may  be,  in  every  legislative 
body,  especially  in  times  of  insurrection  or  invasion,  the  immediate 
publication  of  which  would  be  imprudent  in  tlie  highest  degree. 
The  publication  of  such  from  day  to  day  might  give  great  advan- 
tage to  a  formidable  enemy,  and  endanger  the  very  existence  of  the 
government  itself.  Each  house  is  therefore  allowed  to  judge  of  the 
propriety  and  prudence  of  such  publications. 

§  3.  The  object  of  publication  is  twofold  r  — 

First,  For  future  convenience  ;  as  it  may  be  necessary  to  refer  to 
the  record,  from  time  to  time,  in  the  transaction  of  business  which 
may  be  more  or  less  connected  with  what  has  gone  before. 

Second,  It  acts  as  a  salutary  check  to  hasty  legislation,  as  each 
member  knows  that  he  is  making  a  record  to  be  read  by  coming 
generations. 


4fe0  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 

ART.  IV.  —  YEAS  AND  NAYS. 

At  the  desire  of  one-fifth  of  those  present^  the  yeas  and 
nays  of  the  members  of  either  house  shall  be  entered  on  the 
journal  on  any  question.   10. 

§  1.  The  usual  method  of  taking  a  vote  in  deliberative  bodies  is 
substantially  this :  The  question  being  stated  by  the  presiding  offi- 
cer, he  puts  it  first  affirmatively,  '*  As  many  as  are  in  favor  of  the 
proposition,  say  Aye.^^  All  the  members  in  favor  of  the  move  re- 
spond Aye.  The  presiding  officer  then  puts  the  question  negatively, 
"  Those  opposed,  say  No.''  The  president  is  generally  able  to  de- 
cide by  the  sound ;  but,  if  not,  he  repeats  the  trial,  calling  the  vote 
both  affirmatively  and  negatively.  If  still  in  doubt,  or  at  the 
request  of  a  member,  the  house  may  be  divided ;  the  affirmative 
taking  one  side,  and  the  negative  the  other,  when  the  secretary 
counts :  and,  on  the  count,  the  decision  is  made. 

§  2.  But,  in  taking  the  yeas  and  nays,  the  process  is  quite  dif- 
ferent. The  presiding  officer  states  both  sides  at  once,  thus  :  "  As 
many  as  are  in  favor,  &c.,  will,  when  their  names  are  called,  an- 
swer Tea,'  and  as  many  as  are  opposed  will,  when  their  names  are 
called,  a7iswer  No.''  The  names  are  then  called,  usually  in  alpha- 
betical order,  each  member  rising  at  the  call  of  his  name  by  the 
secretary  or  clerk,  and  answering  yea  or  nay,  as  he  votes ;  the  clerk 
noting  the  vote  in  each  case.  He  then  usually  reads  over  the  list 
of  names  and  the  votes  in  each  case,  so  that,  if  any  mistakes  have 
been  made,  they  may  be  corrected. 

§  3.  The  object  of  this  process  of  voting  is,  that  a  definite  and 
enduring  record  may  be  made  of  the  transaction,  both  for  the 
iirformation  of  the  people  and  for  future  reference.  The  record  also 
shows  who  were  absent ;  a  matter  of  scarcely  less  importance  to  the 
member,  or  his  constituency,  than  the  vote  itself  one  way  or  the 
other.  Members  sometimes  absent  themselves  for  the  purpose  of 
avoiding  responsibility  in  voting. 

§  4.  The  Constitution  places  it  within  the  power  of  one-fifth  the 
members  present  to  compel  the  calling  of  the  yeas  and  nays.  It  is 
a  power  that  may  be  shamefully  abused,  however,  by  a  refractory 
minority  calling  for  the  yeas  and  nays  on  any  and  every  frivolous 


Part  II.]  COMMON  TO  BOTH  HOUSES.  151 

pretense,  for  the  purpose  of  defeating  decisive  legislation  on  meas- 
ures which  they  cannot  prevent  on  direct  vote.  It  consumes  con- 
siderable time  to  take  the  yeas  and  nays  in  an  assembly  constituted 
of  a  hundred  and  fifty  or  two  hundred  members ;  and  hours  are 
sometimes  wasted  in  this  way  on  unimportant  motions,  so  as  to 
compel  the  majority  to  an  adjournment  from  sheer  exhaustion. 

AST.  v.  — BUSINESS  RULES. 

Each  house  may  determine  the  rules  of  its  own  proceed- 
ings.  18. 

§  1.  Every  deliberative  assembly  has  an  inherent  right  to  adopt 
such  rules  as  it  chooses  for  the  transaction  of  business,  provided 
those  rules  do  not  violate  any  organic  law  from  which  such  assembly 
receives  its  authority.  It  is  but  in  afl&rmance  of  this  right  that  the 
Constitution  contains  the  foregoing  clause. 

§  2.  Take  away  the  right  to  adopt  their  own  rules  of  proceeding, 
and  it  would  be  utterly  impracticable  to  transact  business  with 
facility  and  dispatch.  Of  course,  the  rules  of  business  must  be  in 
conformity  with  the  provisions  of  the  Constitution.  Neither  house, 
for  instance,  could  enforce  a  rule,  should  they  make  one,  requiring 
more  than  one-fifth  of  the  members  present  to  secure  the  call  of  the 
yeas  and  nays. 

ART.  Vr.- PENALTIES. 

1.  Either  house  m,ay  punish  its   members  for  disorderly 

conduct  /  and^ 

2.  With  the  concurrence  of  two-thirds,  expel  a  member.    18. 

§  1.  The  power  to  punish  members  for  disorderly  conduct  is  usu- 
ally given  to  legislative  bodies.  Without  this  power,  it  might  be 
impossible,  at  times,  to  transact  business.  Under  high  excitement, 
members  are  sometimes  boisterous  and  tumultuous  in  conduct; 
and  they  might  persist  in  disturbing  the  assembly,  but  for  this  power 
to  punish.  Rules  would  be  of  no  use  without  the  power  to  enforce 
them. 

§  2.  The  power  to  expel  a  member  is  given  for  the  same  pur- 
pose ;  that  is,  for  the  preservation  of  order,  and  for  the  maintenance 


X52  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 

of  proper  decorum.  Without  these,  the  country  would  lose  alJ 
respect  for  its  legislative  assembly.  But  lest  party-spirit  might 
overstep  the  limits  of  propriety,  and  a  domineering  majority  expel 
members  of  opposite  political  sentiments  from  improper  motives,  a 
salutary  restraint  is  imposed,  requiring  a  vote  of  two-thirds  for  the 
expulsion  of  a  membejr.  So  large  a  majority  it  would  be  difficult  to 
secure  in  any  case  where  the  rights  of  the  assembly  had  not  been 
grossly  outraged. 

ART.  VII.  — PROHIBITIO]!^S. 

1.  Adjournments. 

1st.  Neither  Jiouse^  during  the  session  of  Congress, 
shall,  without  the  consent  of  the  other,  adjourn 
for  more  than  three  days  ;  nor, 

26?.  To  any  other  place  than  that  in  which  the  two 
houses  shall  be  sitting.  SO. 

2.  On  Members. 

No  member  of  either  house  shall,  during  the  time  for 

which  he  was  elected,  be  appointed  to  any  office  under 

the  ZTnited  States, 

\st.  Which  shall  have  been  created  during  such  time;  nor, 

2d,  The  emoluments  of  lohich  have  been  increased  dur- 

ing  such  time.   22, 

§  1. — Adjournments. 

1st.  As  to  Time.  —  If  there  were  no  limitation  as  to  the  time  for 
which  either  house,  during  the  session  of  Congress,  might  adjourn 
without  the  consent  of  the  other,  a  factious  party-spirit  controlling 
in  either  house  might  seriously  interrupt  legislation,  or  bring  it  to 
an  untimely  close. 

2d.  As  to  Place.  —  Were  there  no  restriction  with  regard  to  the 
place  to  which  either  house  might  adjourn  without  the  consent  of 
the  other,  mischief  equally  disastrous  and  embarrassing  might  be 
perpetrated.  One  house  might  compel  the  other  to  follow  it  from 
place  to  place  for  the  very  purpose  of  preventing  legislation.  This 
might  be  done  by  a  minority  taking  advantage  of  the  absence  of  a 
majority,  as  a  minority  has  power  to  adjourn. 


Part  II.]  COMMON  TO  BOTH  HOUSES.  153 

The  duration  of  the  sessions  of  Congress  depends, 

1st.  On  the  Constitutional  limitation,  which  can  not  extend  be- 
yond the  period  of  two  years. 

2d.  On  the  pleasure  of  the  two  houses,  subject  to  the  foregoing 
restriction. 

3d.  On  the  pleasure  of  the  President  of  the  United  States, 
when  the  two  houses  can  not  agree  on  the  time  of  adjournment. 

§  2.  —  On  Members. 

1st.  If  a  member  of  Congress  were  permitted  to  assist  in  creat- 
ing an  office,  and  then  to  resign  his  seat  for  the  purpose  of  obtain- 
ing that  office  on  being  nominated  to  it  by  the  President,  it  would 
throw  wide  open  the  doors  to  executive  corruption.  Numerous  lu- 
crative offices  might  thus  be  created  by  legislation,  with  the  under- 
standing, express  or  implied,  between  the  legislators  and  the 
Executive,  that  the  offices  so  created  should  be  distributed  among 
those  who  were  instrumental  in  creating:  them. 

The  chairman  of  the  Judiciary  Committee  might  propose  to  the 
house  of  which  he  was  a  member  the  creation  of  a  United-States 
judgeship  in  California,  with  a  salary  of  ten  thousand  dollars  a  year ; 
and,  througli  his  official  influence,  the  bill  might  pass  both  houses  of 
Congress.  By  pre-arrange ment  with  the  Executive,  that  office  might 
be  secured  to  the  very  man  who  had  been  the  chief  means  of  creatr 
ing  it,  were  he  at  liberty  to  resign  his  seat  and  take  it. 

2d.  Also,  by  a  system  of  "  bargaining  and  selling,"  the  salaries 
of  certain  offices  might  be  greatly  increased  by  mercenary  legisla- 
tion ;  and  then  those  salaries  might  be  bestowed  on  the  very  men  who 
had  been  active  in  augmenting  them,  but  for  the  restriction  under 
consideration. 

We  can  not  too  much  admire  the  wisdom,  purity,  and  sagacity  of 
the  great  and  good  men  who  formed  the  Constitution,  in  their  effiarts 
to  withdraw  as  far  as  possible  from  the  framework  of  our  govern- 
ment all  motives  to  selfish  and  dishonest  legislation. 

ART.  VIII.  — OFFICIAL  OATH. 

Senators  and  representatives  shall  be  bound  by  oath  or  affir- 
mation  to  support  the  Constitution  of  the  United  States.  81. 


15^  ANALYSIS   OF   CIVIL  GOVERNMENT.    [Part  IL 

§  1.  This  oath  is  admiaistered  to  the  members,  before  taking  their 
seats,  by  the  Secretary  of  the  Senate,  or  Clerk  of  the  House  of  llepre- 
sentatives.  The  one  who  takes  it  appeals  to  the  Supreme  Being 
for  the  rectitude  of  his  intentions.  Such  an  oath  is  calculated  to 
make  a  solemn  impression  on  the  mind  of  any  candid  and  consci- 
entious man. 

§  2.  It  seems  fit  and  proper,  therefore,  that  all  who  assume  the 
important  trust  of  legislation  for  their  country  should  take  upon 
themselves  this  solemn  obligation.  They  assume  grave  responsibih- 
ties,  the  faithful  discharge  of  which  concerns  the  welfare  of  the  whole 
people. 

§  3.  If  it  is  necessary  to  administer  a  solemn  oath  to  a  justice  of 
the  peace,  a  witness,  a  juror,  or  constable,  to  insure  the  faithful 
performance  of  his  duties,  it  is  far  more  befitting  in  cases  of  the 
most  sacred  public  trust. 

§  4.  Some  persons  are  conscientiously  opposed  to  taking  an  oath 
on  any  occasion  whatever.  Out  of  respect  to  the  scruples  of  such 
persons,  a  solemn  afiSrmation  is  administered  instead  of  an  oath. 

ART.  IX.  — SALARIES. 

1.  TTie  members  shall  receive  a  compensation  for  their  ser- 

vices^ to  be  ascertained  by  laio  ;  a7id^ 

2.  The  same  shall  be  paid  out  of  the  treasury  of  the  United 

States.   SI. 

§  1.  In  the  Constitutional  Convention,  there  were  quite  a  number 
of  members  opposed  to  allowing  salaries  to  representatives  and  sena- 
tors, but  more  especially  senators.  It  was  proposed  to  consider  the 
honor  of  the  position  a  sufiicient  reward;  believing  that  this  would 
secure  the  services  of  men  of  higher  character  and  more  distinguished 
ability.  On  the  contrary,  it  was  urged  that  this  would  savor  too 
much  of  aristocracy,  and  prevent  men  of  limited  means,  however 
worthy,  from  accepting  seats  in  the  national  councils,  and  thus  de- 
prive the  country  of  the  benefits,  in  many  instances,  of  able  minds, 
for  want  of  wealth. 

§  2.  In  England,  the  members  of  Parliament  are  not  paid  for 
their  services.     If  a  poor  man  is  elected  to  the  House  of  Commons, 


Part  II.]  COMMON  TO  BOTH  HOUSES.  iL55 

he  is  compelled  to  depend  on  the  libeiahtj  of  wealthy  friends.  Tho 
House  of  Lords  is  composed  of  the  aristocracy  of  the  realm,  who,  of 
course,  stand  in  no  need  of  salaries. 

§  3.  But  the  majority  of  the  Convention  were  in  favor  of  salaries  • 
and  this  view  prevailed.  It  was  thought  best  that  the  salaries 
of  members  should  be  paid  from  the  United-States  treasury,  as  that 
would  be  more  likely  to  secure  promptness  of  payment,  and,  conse- 
quently, promptness  of  attendance.  Under  the  Confederation,  the 
members  were  paid  by  their  respective  States.  The  pay  was  often 
slow,  and  the  attendance  tardy  and  reluctant. 

§  4.  The  salaries  of  members  is  to  be  ascertained  (that  is,  fixed) 
by  law.  But  who  makes  the  law?  The  members  themselves. 
The  salaries  have  been  advanced  several  times  since  1789,  at  the 
opening  of  the  first  Congress  under  the  present  Constitution. 

1st.  From  March  4,  1789,  to  March  4,  1795,  inclusive,  six  dollars 
a  day.  For  the  same  time,  six  dollars  for  every  twenty  miles' 
travel. 

2d.  From  March  4,  1795,  to  March  4,  1796,  inclusive,  senators 
received  seven  dollars,  and  representatives  six  dollars,  a  day, 
and  travel-fees  as  before. 

3d.  From  March  4,  1796,  to  Dec.  5,  1815,  the  pay  of  members 
of  either  house  was  six  dollars  a  day,  and  travel-allowance  six 
dollars  for  every  twenty  miles. 

4th.  From  Dec.  5,  1815,  to  March  4,  1817,  the  pay  was  fifteen 
hundred  dollars  a  year,  travel-fees  as  before,  and  proportional 
deduction  of  salary  for  absence  for  any  cause  but  sickness. 
The  President  of  the  Senate  and  the  Speaker  of  the  House 
received  double  the  pay  of  other  members. 

5th.  From  March  4,  1817,  to  the  first  Monday  of  December,  1856, 
the  pay  was  eight  dollars  a  day,  and  eight  dollars  for  every 
twenty  miles'  travel.  The  President  pro  tempore  of  the 
Senate  and  the  Speaker  of  the  House  each  received  double  tho 
pay  of  other  members. 


156  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 

6th.  From  the  first  Monday  of  December,  1856,  to  1866,  the  pay 
of  members  was  three  thousand  dollars  a  year ;  the  Speaker  of 
the  House  to  receive  double  pay,  and  the  President  'pro  tempore 
of  the  Senate  the  same  as  the  Vice-President  would  have  been 
entitled  to,  —  six  thousand  dollars ;  the  Vice-President,  William 
K.  King  of  Alabama,  having  died  soon  after  his  election. 
Mileage,  or  traveling-expenses,  same  as  before. 

7th.  An  act  was  passed  July  28,  1866,  raising  the  pay  of  members 
of  Congress  to  five  thousand  dollars  a  year,  and  mileage  as 
heretofore ;  the  Speaker  of  the  House,  eight  thousand  dollars. 
What  the  salaries  may  be  at  the  next  advance  df'pends  on  the 
pleasure  of  Congress. 


CHAPTER  IV. 

POWERS  OF  CONGRESS. 

Note.  —  1.  While  it  is  intended  to  treat  the  departments  of  government 
by  topics,  it  will  be  necessai'y  to  frequently  refer  to  other  subjects  than  the 
one  under  more  immediate  consideration,  The  powers  conferred  by  the 
Constitution  are  intimately  related  to  and  dependent  on  each  other.  The 
legislative  functions  are  so  related  to  the  executive  and  judicial,  the  judicial 
to  the  executive  and  legislative,  and  the  executive  to  each  of  the  others, 
that,  in  treating  of  either,  reference  must  be  had  more  or  less  to  the  others. 

2.  It  is  desirable,  however  (and  that  is  the  aim  of  this  work),  to  group 
powers  of  kindred  character,  as  far  as  possible,  under  the  same  general  or 
specific  titles.  The  arrangement  of  the  powers  specified  in  the  Constitu- 
tion is  palpably  defective,  as  has  been  noticed  by  our  best  writers  on  the 
subject.  In  discussing  it,  therefore,  by  topics,  it  is  impossible  to  pay  nmch 
attention  to  the  order  of  that  arrangement. 

3.  This  want  of  order  in  the  instrument  is  more  particularly  apparent, 
perhaps,  in  the  powers  of  Congress,  than  in  either  of  the  other  departments 
of  the  government.  Single  sentences  and  clauses  are  scattered  here  and 
there,  detached  from  their  proper  connections,  without  any  regard  to  their 
harmonious  and  necessary  relationship.  It  is  the  purpose  of  the  Analysis, 
as  far  as  possible,  to  bring  these  fragmentary  clauses  and  sentences  into  . 
position  with  others  to  which  they  are  related. 


Part  TI.]  POWERS  OF  CONGRESS.  167 

ART.  I.  — FINANCES. 

1.  Resources. 

Is^.   To  lay  and  collect  taxes^  uniform  duties,  imposts^ 
and  excises.   S6. 
JBut  all  direct  taxes  must  he  apportioned  among  the 
several  States  according  to  their  respective  num- 
bers. 5,  47. 

2c?.   To    borrow   money   on   the   credit  of  the    United 
States.  27. 

3d.    To  dispose  of  the  territory  of  the  United  States. 

Ath.  To  dispose  of  other  property  of  United  States.  76. 

2.  Disbursements. 

1st.  To  pay  the  debts  of  the  United  States. 
2d.    To  provide  for  the  common  defense. 
Sd,    To  provide  for  the  general  welfare.  20, 

1.  -  RESOURCES. 

§  1.  A  tax  is  a  sum  of  money  levied  on  tlie  property  or  inhabitants 
of  a  country  for  the  support  of  the  government.  When  levied  on 
individuals,  without  any  reference  to  the  amount  of  property  owned 
by  them,  it  is  called  a  capitation  or  poll  tax.  When  levied  on  the 
property,  it  is  to  be  done  in  proportion  to  its  value,  as  ascertained 
by  local  officers  called  assessors. 

§  2.  The  power  to  lay  and  collect  taxes  belongs  to  every  human 
government,  without  which  the  expenses  thereof  could  not  be  de- 
frayed. This  is  one  of  the  means  which  it  has  of  enabling  it  to 
perform  its  obligations  to  the  country.  No  government  could  sus- 
tain itself  without  regular  and  reliable  resources. 

§  3.  The  word  "  taxes  "  here,  doubtless,  means  direct  taxes,  which 
are  mentioned  in  two  other  places  in  the  Constitution,  and  which  are  to 
be  imposed  on  States  according  to  their  respective  numbers,  as  ascer- 
tained by  the  census,  or  enumeration.  They  are  to  be  apportioned 
among  the  several  States  in  the  same  manner  as  representatives. 

§  4  Taxes  are  of  two  kinds,  —  direct  and  indirect.  Direct  taxes 
are  such  as  may  be  levied  on  land  and  other  real  estate,  and  capi- 
tation-taxes, or  taxes  on  individuals.     Indirect  taxes  are  such  bs  are 


158  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 

levied  on  articles  of  consumption,  of  which  no  person  pays,  except 
in  proportion  to  the  quantity  or  number  of  such  articles  which  he 
may  consume. 

§  5.  Duties,  imposts,  and  excises  are  also  of  the  nature  of  indi- 
rect taxes.  These  must  be  uniform  throughout  the  United  States. 
This  is  to  prevent  giving  any  preference  to  the  pursuits  or  interests 
of  one  State  over  those  of  another. 

§  6.  The  word  "  duties  "  refers  to  a  kind  of  taxes  levied  on  goods 
and  merchandise  imported  or  exported.  In  our  country,  an  export 
duty  is  not  permitted  to  be  levied.  The  Constitution  forbids  it. 
The  word  "  imposts,"  under  our  government,  is  equivalent  to  *'  cus- 
toms," referring  strictly  to  the  duties  on  imports  from  foreign  coun- 
tries. It  would  also  cover  duties  on  exports,  were  such  duties 
allowable. 

§  7.  The  word  "  excises  "  is  applied  more  particularly  to  internal 
taxation ;  being  levied  on  articles  manufactured  and  consumed  in  the 
country,  and  also  on  various  kinds  of  business.  The  money  paid 
for  licenses  to  sell  liquors,  or  to  deal  in  any  other  commodities,  is 
called  excises,  or  excise  taxes. 

§  8.  Duties  on  imports  are  of  two  kinds,  —  specific  and  ad 
valorem.  A  specific  duty  is  a  certain  sum  of  money  charged  by 
law  at  the  custom-house  where  goods  are  landed,  according  to  quan- 
tity or  weight,  without,  any  reference  to  the  value  of  the  articles 
weighed  or  measured ;  as  a  dollar  on  a  yard  of  silk,  a  gallon  of  brandy, 
a  bushel  of  wheat,  or  a  pound  of  opium. 

§  9.  "Ad  valorem  "  is  a  word  or  phrase  that  signifies  according 
to  the  value  of.  Ad  valorem  duties  are  levied  on  articles  accord- 
ing to  their  value.  An  ad  valorem  duty  of  twenty  per  cent  on 
a  watch  or  diamond  worth  a  hundred  dollars  would  require  the  pay- 
ment of  twenty  dollars. 

§  10.  Duties  are  collected  at  the  custom-house  where  the  dutiable 
goods  are  landed.  It  is  not  easy  to  avoid  the  payment  of  specific 
duties,  except  by  a  process  called  smuggling;  tliat  is,  by  the  owner's 
concealing  the  articles,  or  landing  them  clandestinely,  in  order  to 
avoid  payment.     In  such  case,  however,  he  runs  the  risk  of  detec- 


Part  II.]  POWEKS  OF  CONGRESS.  159 

tion,  and  forfeiture  of  the  goods  to  the  government,  and  of  subject- 
ing himself  to  other  penalties  more  or  less  severe. 

§  11.  In  the  payment  of  ad  valorem  duties,  there  is  considerable 
chance  for  the  perpetration  of  fraud.  The  owner  of  the  goods  is 
required  to  swear  to  the  accuracy  and  truthfulness  of  his  invoices ; 
that  is,  the  bills  of  goods.  The  goods  are  estimated  at  their  value 
where  they  are  purchased,  not  where  delivered. 

A  dishonest  merchant  might  produce  a  false  invoice,  rating  the 
goods  below  their  cost  value,  so  as  to  bring  the  duties  to  a  lower 
standard.  For  instance,  if  he  imported  a  thousand  reams  of  paper, 
costing  him  four  dollars  a  ream,  he  might  produce  to  the  custom- 
house officer  a  false  invoice  or  bill,  rating  the  paper  at  two  dollars  a 
ream.  If  the  ad  valorem  duty  were  twenty  per  cent,  and  the  im- 
porter should  succeed  in  his  fraud,  he  would  clear  four  hundred 
dollars* 

§  12.  But  the  custom-house  officer  is  not  bound  by  the  invoice, 
nor  by  the  oath  of  the  owner.  If  he  believes  there  is  a  mistake,  he 
has  the  goods  appraised,  and  exacts  duties  according  to  their  ascer- 
tained value.  If  fraud  is  proved,  the  goods  are  forfeited  to  the  use 
of  the  United  States ;  and  the  perpetrator  of  the  iniquity  may  be 
fined  or  imprisoned,  or  both. 

§  13.  The  power  to  borrow  money  on  the  credit  of  the  United 
States  is  classed  among  the  government  resources.  It  has  often 
been  found  to  be  of  great  importance  in  sustaining  the  financial  in- 
terests of  the  country.  No  country  can  sustain  itself  through  a 
long  and  expensive  war,  simply  on  its  ordinary  income.  All  the 
great  powers  of  the  world  have  found  it  necessary,  at  one  time  or 
another,  to  borrow  money. 

§  14.  In  our  wars  with  Great  Britain  and  with  Mexico,  we  found 
it  necessary  to  borrow  in  large  sums  ;  but,  in  our  more  recent  do- 
mestic war,  we  were  compelled  to  run  up  our  national  debt  to  nearly 
three  thousand  millions  In  time  of  war,  it  is  sometimes  necessary, 
in  a  few  years,  to  anticipate  the  government  income  for  a  quarter  or 
half  a  century. 

§  15.  The  cost  of  the  civil  war  in  this  country  on  the  part  of  the 


160  ANALYSIS  OF  CIVIL  GOVEKNMENT.     [Part  II. 

United  States  proper,  saying  nothing  of  the  cost  to  the  insurgent 

States,  was  for  the 

Years  1861-2 $583,885,247.06 

*'     1862-3  ....  788,558,777.62 

"     1863-4 1,025,413,183.56 

"     1864-5  ....         1,151,815,089.86 


$3,549,672,298.10 

§  16.  We  were  compelled  to  borrow  from  year  to  year  as  fol- 
lows :  — 

From  1861-2 $529,692,460.50 

"     1862-3  ....  608,063,432.02 

**     1863-4 622,388,183.56 

''     1864-5  ....  544,978,548.93 


Total     .         .         .  $2,305,122,625.01 

The  debt  was  considerably  increased  beyond  the  above  figures 
from  1865  to  1866. 

§  17.  The  right  of  ownership  always  implies  the  right  of  aliena- 
tion. The  right  to  dispose  of  the  territory  of  the  United  States 
is  to  be  understood  here  in  a  restricted  sense.  Congi"ess  lias  not  the 
power  to  dispose  of  a  State,  for  instance,  by  alienation.  The  United 
States  does  not  own  a  State  in  fee-simple,  or  in  any  sense  implying 
an  interest  in  its  soil.     Congress  has  the  power  to  dispose  of, 

1st,  Unorganized  and  unoccupied  tracts  or  territories. 

2d,  Public  lands  in  parcels  to  settlers,  or  to  individuals  desiring 
to  purchase. 

3d,  To  dispose  of  them  in  any  other  way  for  the  promotion  of  the 
general  welfare. 

4th,  To  cede  to  States  unoccupied  lands  lying  within  their  boun- 
daries, for  literary  or  school  purposes. 

5th,  To  re-cede  to  States,  for  instance,  from  which  they  have  been 
obtained,  any  lands,  when  the  purposes  for  which  they  were  ob- 
tained no  longer  exist. 

§  18.  This  power  to  dispose  of  the  territory  of  the  United  States 
implies  the  power  to  sell  the  lands,  or  to  give  them  away  for  the 


Part  II.] 


POWERS   OF  CONGRESS. 


161 


public  good.  Many  of  the  Western  States  have  received  grants  of 
large  tracts  of  lands  within  their  borders  by  act  of  Congi-ess.  In 
selling  lands  to  individual  purchasers,  the  government  has  received 
many  millions  into  its  treasury  :  so  that  the  disposition  of  the  terri- 
tory of  the  United  States  may  properly  be  regarded  as  one  of  the 
national  resources. 

§  19.  In  1780,  Congress  resolved  that  lands  that  might  be  relin- 
quished to  the  United  States  by  any  particular  State  or  States 
should  be  disposed  of  for  the  common  benefit  of  the  United  States, 
and  be  settled  and  formed  into  distinct  republican  States,  to  become 
members  of  the  Union,  and  have  the  same  rights  of  sovereignty  as 
other  States.  This  was  the  first  step  taken  which  has  resulted  in 
the  acquisition  of  immense  territory  subject  to  the  disposal  of  Con- 
gress. 

§  20.  Before  being  offered  for  sale,  the  lands  are  regularly  sur- 
veyed into  townships  six  miles  square,  and  the  townships  into  divis- 
ions called  sections  of  six  hundred  and  forty  acres  each  (one  mile 
square);  and  the  sections  are  surveyed  into  half,  quarter,  and  eighths 
of  sections.  The  townships  are  numbered  north  and  south,  and 
ranges  numbered  east  and  west ;  as,  for  instance,  township  number 
nine,  north  or  soutli,  range  six,  east  or  west.  Here  is  a  map  of  a 
township  marked  off  in  sections,  one  of  which  is  marked  into  subdi- 
visions, each  containing  but  forty  acres  :  — 

North. 


West. 


6 

6 

4 

3 

2 

1 

7 

8 

9 

10 

11 

12 

18 

17 

16 

16 

14 

13 

19 

20 

21 

22 

23 

24 

30 

29 

28 

27 

26 

25 

31 

32 

33 

34 

35 

.,  ,. 

^ 

1  !  _ 

East. 


South. 


11 


V. 


^U/x 


162  ANALYSIS   OF  CIVIL  GOVERNMENT.     [Part  II. 

§  21.  In  most  of  the  Western  States,  one  section  in  each  town- 
ship has  been  granted  to  the  State  for  common-school  purposes.  In 
Michigan,  and  perhaps  in  the  other  States,  section  sixteen  is  the  one 
selected,  locating  the  school-lands  very  near  the  centre  of  the 
township. 

§  22.  For  many  years,  the  lands,  after  being  surveyed,  were  sub- 
ject to  sale  by  auction,  after  which  any  that  remained  unsold  were  sub- 
ject to  purchase  at  private  sale ;  the  price  in  either  case,  a  dollar  and  a 
quarter  an  acre.  But  in  1854  there  was  a  change  in  the  terms  :  any 
that  were  unsold  after  being  in  market  ten  years  or  upwards  were  held 
for  actual  settlers  at  a  dollar  an  acre.  Unsold  lands,  after  being  in 
market  fifteen  years  or  upwards,  to  actual  settlers,  seventy-five  cents 
per  acre  ;  twenty  years  or  upwards,  fifty  cents  per  acre  ;  twenty-five 
years  or  upwards,  twenty-five  cents  per  acre ;  thirty  years  or  up- 
wards, twelve  and  one-half  cents  per  acre.  Under  this  act,  however, 
no  settler  was  allowed  to  purchase  more  than  three  hundred  and 
twenty  acres,  or  half  a  section. 

§  23.  May  20,  1862,  Congress  passed  an  act,  which  was  amended 
March  21,  1864,  and  further  amended  June  21,  1866,  known  as 
the  Homestead  Law.  This  law  allows  actual  settlers,  under  certain 
restrictions,  to  obtain  one  hundred  and  sixty  acres  of  land,  — enough 
for  a  home,  —  for  the  trifling  sum  of  five  dollars.  The  chief  restric- 
tions are,  — 
1st.  The  applicant  shall  make  affidavit  that  he  or  she  is  the  head 

of  a  family  ;  or, 
2d.  That  he  or  she  is  twenty-one  years  of  age  or  more;  or, 
3d.  That  he  has  performed  service  in  the  army  or  navy  of  the  United 

States 
4th.  That  the  application  is  made  for  his  or  her  exclusive  benefit. 
5th.  That  said  application  is  made  for  the  purpose  of  actual  settle- 
ment and  cultivation  ;  and, 
6th.  That  it  is  neither  directly  nor  indirectly  for  the  use  or  benefit  of 

any  other  person  or  persons  whomsoever. 
7th.  Before  obtaining  a  title,  there  must  be  five  years  of  actual  occu- 
pancy. 

§  24.  The  foregoing  synopsis  will  give  a  fair  idea  of  the  object 


Part  II.]  POWERS  OP  CONGRESS.  163 

and  intention  of  the  law.  The  whole  drift  and  scope  of  the  act  are, 
to  encourage  actual  settlers  to  enter  and  cultivate  the  Western  coun- 
try. The  theory  of  the  advocates  of  this  law  is,  that  it  is  far  bet- 
ter for  the  country,  and  more  profitable  to  the  government  as  a 
source  of  revenue^  that  these  lands  should  be  ffiven  away  to  millions 
of  actual  settlers  and  cultivators  of  the  soil,  than  that  they  should 
be  sold  to  speculators  at  whatever  price,  to  remain  untouched  by 
the  hand  of  industry,  and  unproductive  for  an  indefinite  future. 
Actual  settlement  will  add  immensely  to  the  taxable  property  of  the 
country. 

§  25.  During  the  fiscal  year  ending  June  30,  1866,  public  lands 
were  disposed  of  as  follows  :  — 

Acres  sold  for  cash 888,294.15 

entered  under  the  homestead  acts  .  1,892,516.86 
located  with  military  warrants       .  .       403,180.00 

approved  to  States  as  swami>land  .  1,199,658.27 
approved  to  States  for  railroads  .  .  94,596.99 
located  with  agricultural  college  scrip  651,066  60 


4,629,312.87 
During  the  same  period  6,423,984.18  acres  were  offered  for  sale. 
The  cash  receipts  from  sales  and  other  sources  were  $824,645.08. 
The  number  of  homestead  entries  exceeded  that  of  the  preceding 
year  by  more  than  sixty  per  cent. 

The  entire  amount  of  the  public  domain  at  that  time  was  one 
thousand  four  hundred  sixty-five  millions,  four  hundred  sixty-eight 
thousand,  eight  hundred  acres  (1,465,468,800).  Of  this  vast  do- 
main, four  hundred  seventy-four  millions,  one  hundred  sixty  thou- 
sand, five  hundred  fifty-one  acres  had  been  surveyed  (474,160,551). 
§  26.  Congress  is  invested  with  power  to  dispose  of  other  prop- 
erty of  the  United  States.  This,  doubtless,  includes  every  species 
of  personal  property.  In  time  of  war,  especially,  a  vast  amount 
of  personal  property  accumulates  in  the  hands  of  government,  such  as 
ships,  horses,  wagons,  guns,  clothing  for  soldiers,  &c.,  which  become 
useless  in  time  of  peace,  and  may  be  disposed  of  to  the  advantage 
of  the  public  treasury. 


16|t  ANALYSIS   OF  CIVIL  GOVERNMENT.     [Part  II. 

2.  -  DISBURSEMENTS. 
I.— To  pay   the  Debts. 

§27.  In  the  opinion  of  the  most  distinguished  jurist  who  has  writ- 
ten on  the  Constitution,  Judge  Story,  the  only  purposes  for  which 
the  burden  of  taxes,  duties,  imposts,  and  excises  can  be  imposed,  are 
to  pay  the  debts  and  provide  for  the  common  defense  and  general 
welfare  of  the  United  States.  The  power  of  raising  money  through 
these  means  is  for  these  definite  and  stipulated  purposes. 

§28.  Another  eminent  writer  on  the  subject  holds  that  the  power 
over  these  governmental  resources  is  unlimited  and  absolute,  with- 
out any  reference  to  the  objects  for  which  they  are  to  be  disbursed. 
By  this  reasoning,  he  would  be  obliged  to  vary  the  punctuation  of 
these  clauses  so  as  to  wholly  disconnect  that  of  obtaining  money 
from  that  of  paying  it  out.  To  justify  this  interpretation,  it  should 
read  thus  :  — 

1st.  Congress  shall  have  power  to  lay  and  collect  taxes,  duties,  im- 
posts, and  excises. 
2d.  They  shall  have  power  to  pay  the  debts  and  provide  for  the 
common  defense  and  general  welfare  of  the  United  States. 

By  reference  to  the  original  manuscript  copy  now  preserved  in  the 
archives  of  the  government  at  Washington,  a  true  copy  of  which  is 
found  in  this  work,  it  will  be  seen  that  the  punctuation  of  these 
clauses  will  not  bear  any  such  construction.  The  true  construction 
seems  to  be,  that  Congress  has  these  revenue  powers  in  order  to  pay 
the  debts  and  provide  for  the  common  defense  and  general  welfare 
of  the  United  States;  that  is,  they  are  given  for  these  express 
purposes,  and  no  other. 

§  29.  Every  thing  necessary  for  the  welfare  of  the  country  is  in- 
cluded in  these  powers  of  collecting  money  and  disbursing  it.  We 
have  seen  that  it  may  be  necessary  to  borrow  money  ;  thus  creating 
a  public  debt  for  the  payment  of  which  the  public  faith  must  be 
pledged.  But  public  credit  would  be  worthless,  were  there  no  au- 
thority to  pay  the  debts  thus  contracted.  This,  it  will  be  remem- 
bered, was  a  serious  defect  under  the  Confederation.  The  govern- 
ment was  utterly  powerless  to  maintain  its  credit  at  home  or  abroad. 

§30.  The  Grreat  Rebellion  of  1861-65  would  have  been  successful 


Part  II.]  POWERS  OF  CONGRESS.  165 

but  for  the  public  credit  which  enabled  our  government  to  anticipate 
its  revenue  for  one  or  two  generations.  We  have  seen  that  its  ex- 
penditures were  more  than  two  millions  a  day  for  four  consecutive 
years.  Nothing  but  the  strong  powers  of  the  government  over  its 
finances  enabled  it  to  march  triumphantly  through  that  terrible  trial. 
§31.  The  national  debts  before  the  Rebellion  sometimes  looked  for- 
midable ;  but,  from  our  present  standpoint,  they  appear  insignificant. 
In  1791,  just  after  emerging  from  the  Revolutionary  War,  it  was  less 
than  eighty  millions.  In  1805,  it  was  less  than  ninety  millions. 
With  all  the  expenses  of  the  war  of  1812  with  Great  Britain,  it 
amounted,  in  1816,  to  less  than  a  hundred  and  thirty  millions. 

2.  —  The  Common  Defense. 

§32.  To  provide  for  the  common  defense  is  one  of  the  objects  for 
which  the  various  kinds  of  taxes  may  be  imposed.  Herein,  as  wo 
have  already  seen,  the  Confederation  was  sadly  deficient.  It  could 
apportion  to  the  several  States  their  respective  shares  of  men  and 
money  to  be  raised,  but  could  not  enforce  the  enlistment  or  drafting 
of  a  single  soldier,  or  the  raising  of  a  dollar  in  money. 

§33.  A  nation  without  the  ability  to  protect  itself  from  foreign 
invasion  or  domestic  insurrection  is  destitute  of  one  of  the  attributes 
of  sovereignty  essential  to  its  independence.  The  army  and  navy 
are  the  organizations  through  which  a  nation  demonstrates  its  strength 
in  time  of  war.  These  will  be  considered  when  we  come  to  exam- 
ine the  war-power  of  Congress. 

3.  —  General   Welfare. 

§34.  To  provide  for  the  welfare  of  its  citizens  is  the  first  duty  of 
every  government.  Unable  to  do  this,  it  will  soon  fail  to  command 
the  respect,  homage,  and  loyalty  of  its  subjects ;  and  no  government, 
especially  republican  in  form,  can  long  exist  without  the  regard  and 
affection  of  the  people.  It  must  live,  if  it  live  at  all,  in  the  hearts 
and  afffections  of  its  citizens,  not  "  pinned  together  with  bayonets." 
If  there  is  a  single  sentence  or  clause  in  the  Constitution  more 
comprehensive  of  its  purposes  than  any  other,  it  is  this  one  requir- 
ing Congress  to  make  provision  for  the  general  welfare.  Indeed, 
this  is  the  one  great  object  of  its  origin. 


166  ANALYSIS  OF  CIVIL  GOVEENMEKT.     [Part  II. 

§  35.  There  has  been  much  discussion  on  the  latitude  of  meaning 
of  these  two  words,  "  general  welfare."  The  two  great  political 
parties  of  the  country  have  long  been  divided  on  the  subject.  One 
party  has  insisted  that  the  authority  to  provide  for  the  general  wel- 
fare gives  power  to  establish  a  protective  tariff,  to  expend  the  pubUc 
money  for  internal  improvements,  to  facilitate  inter-State  commerce 
in  improving  lake  and  river  harbors,  aiding  in  building  railroads  of 
especial  public  interest,  giving  away  the  pubHc  domain  to  actual 
settlers,  and  in  promoting  other  enterprises  having  for  their  object 
the  welfare  of  the  nation  at  large.  The  other  party  has  resisted 
this  broad  construction,  insisting  that  the  meaning  of  the  words 
should  be  confined  within  more  restricted  limits. 

AKT.  II.  — COMMERCE. 

To  Regulate  Commerce, — . 

1.  With  foreigyi  nations. 

2.  Among  the  States. 

3.  With  the  Indian  tribes.   38. 

1. -WITH  FOREIGN  NATIONS. 

§  1.  Congress  did  not  possess  the  power  to  regulate  commerce 
under  the  Confederation.  The  want  of  it  involved  the  country  in 
the  most  serious  embarrassments.  Foreign  countries,  and  particu- 
larly Great  Britain,  cultivated  a  monopolizing  policy  injurious  to 
this  country,  and  destructive  to  its  navigation.  The  General  Govern- 
ment possessing  no  authority  of  this  kind,  the  States  attempted  its 
exercise  separately,  each  for  themselves;  which  not  only  proved 
abortive,  but  engendered  rival,  conflicting,  and  angry  disputes  and 
regulations. 

§  2.  There  was  no  want  of  harmony  in  the  Constitutional  Con- 
vention on  the  proposition  that  Congress  should  have  power  to  regu- 
late commerce  with  foreign  nations ;  but  many  members  were  in 
favor  of  requiring  that  no  bill  regulating  or  relating  to  commerce 
should  be  passed  unless  two-thirds  of  both  houses  voted  in  its  favor. 
All  were  familiar  with  the  defects  of  the  former  policy,  and  were  in 
favor  of  vesting  the  power  in  Congress.      If  this  were  done,  of 


Part  II.]  POWERS  OF  CONGRESS.  167 

course  the  States  must  surrender  all  claim  to  the  right  which  they 
had  so  disastrously  exercised. 

§  3.  Judge  Story  says,  that,  in  different  States,  "  the  most  oppo- 
site and  conflicting  regulations  existed. 

"  Each  pursued  its  own  real  or  supposed  interests. 

**  Each  was  jealous  of  the  rivalry  of  its  neighbors. 

*'  Each  was  successively  driven  to  retaliatory  measures.  In  the 
end,  however,  all  their  measures  became  utterly  nugatory,  engender- 
ing mutual  hostilities,  and  prostrating  all  their  commerce  at  the  feet 
of  foreign  nations." 

2. -AMONG  THE  STATES. 

§  4.  The  disastrous  experiences  of  the  past  had  rendered  it 
evident  that  the  power  to  regulate  foreign  commerce  and  inter-State 
commerce  ought  to  be  in  the  same  hands.  Indeed,  they  could  not 
safely  be  separated.  The  power  to  regulate  foreign  commerce,  if 
vested  in  Congress,  it  was  believed,  might  be  so  exercised  as  to 
compel  foreign  nations  to  abandon  their  selfish  policy  towards  us, 
and  oblige  them  to  meet  us  on  terms  of  reciprocity. 

§  5.  But  if  the  States  were  to  be  allowed  to  restrict  each  other, 
to  cultivate  rivalry  of  interests,  and  to  foster  the  jealousies  of  the 
past,  commerce  must  languish,  and  the  whole  country  must  suffer. 
If  goods  landed  or  manufactured  in  New  York  or  Massachusetts 
could  not  be  sold  and  conveyed  into  Pennsylvania  or  Connecticut 
without  being  burdened  with  State  restrictions,  not  only  would  feuds 
he  cultivated  among  the  States,  but  foreign  commerce  would  be  seri- 
ously embarrassed,  if  not  wholly  destroyed.  If  a  cargo  of  tea, 
having  paid  duties  in  New  York,  could  not  be  sold  into  New  Jersey 
without  being  subjected  to  State  duties  in  the  latter  State,  it  would 
discourage  importations,  and  strike  a  fatal  blow  at  the  national 
revenue. 

§  6.  The  power  to  regulate  commerce  among  the  States,  as  well 
as  with  foreign  nations,  was,  therefore,  wisely  placed  in  the  hands  of 
Congress.  It  has  established  our  prosperity  on  a  solid  and  enduring 
basis,  and  raised  our  country  from  embarrassment  and  poverty  to 
independence  and  wealth. 


168  ANALYSIS  OF   CIVIIi   GOVEKNMEi^T.     [Part  II. 

3.  — WITH  THE  INDIAN  TRIBES. 

§  7.  Under  the  Confederation,  Congress  had  the  power  of  "regu- 
lating the  trade  and  managing  all  affairs  With  the  Indians  not  mem- 
bers of  any  of  the  States,  provided  that  the  legislative  right  of  any 
State  within  its  own  limits  be  not  infringed  or  violated."  This  did 
not  give  any  rights  to  Congress  over  the  matter,  except  outside  the 
limits  of  States.  Consequently,  there  was  no  uniformity  of  traffic 
with  the  Indians ;  and,  this  creating  dissatisfaction  among  the  tribes, 
frequent  aggressions  and  depredations  were  the  result. 

§  8.  In  the  first  draught  of  the  Constitution  by  the  Convention, 
there  was  no  clause  vesting  this  power  in  Congi-ess ;  but,  the  draught 
being  referred  to  the  Committee  on  the  Constitution,  this  clause  was 
afterwards  inserted  and  adopted.  It  was  indispensable  for  three 
reasons :  — 
1st.  Experience  had  proved  that  it  was  extremely  hazardous  to  leave 

it  with  the  States. 
2d.    Congress  could  much  more  easily  command  the  confidence  of 

the  tribes  than  any  State  legislatures. 
3d.    It  was  necessary  for  the  preservation  of  the  rights,  and  for  the 

defense  of  the  territory,  of  the  Indians  themselves. 
§  9.  This  power  of  Congress  extends  to  tribes  living  within  or 
without  the  territorial  boundaries  of  the  States,  and  within  or  with- 
out the  limits  of  the  United  States.  Whether  the  tribes  remain  on 
their  original  grounds  within  the  States,  inhabit  unorganized  terri- 
tory, or  roam  at  large  over  lands  to  which  the  United  States  have 
no  claim,  the  trade  and  commerce  with  them  are  subject  to  the  ex- 
clusive regulation  of  Congress. 

ART.  III.— COMMERCIAL. 

1.  To  coin  money. 

2.  To  regulate  the  valine  thereof. 

3.  To  regulate  the  value  of  foreign  coin. 

4.  To  fix  the  standard  of  weights  and  measures.   30. 

5.  To  establish  uniform  laws  on  the  subject  of  bankruptcies 

throughout  the  United  States.   30. 

Note.  —  These  provisions  of  the  Constitution  give  powers  to  Congress 
over  matters  auxiliary  to  commerce,  and  which  facilitate  and  promote  its 


Part  II.]  POWERS  OF  CONGRESS.  169 

interests.  Commerce,  properly  speaking,  is  the  buying  and  selling  or  exchan- 
ging of  commodities  between  individuals  or  communities.  Commercial  is  an 
adjective  whicli  signiiies  pertaining  to,  or  relating  to,  commerce.  Perhaps 
it  miglit  not  have  been  altogether  improper  had  the  powers  under  this  title 
been  grouped  under  the  title  Commerce.  But  there  is  a  distinction  between 
commercial  facilities  and  commerce  itself.  The  coining  of  money  affords 
commercial  facilities,  though  money  is  not  an  article  of  commerce. 

l.-TO   COIN  MONEY. 

§  1.  This  power  is  one  of  the  ordinary  prerogatives  of  sover- 
eignty. It  is  exercised  for  the  purpose  of  securing  a  proper  circu- 
lation of  genuine  instead  of  base  coin  in  commercial  transactions. 
In  order  to  insure  its  purity  and  uniformity  of  value,  the  coining  of 
money  is  placed  exclusively  under  the  supervision  of  the  Federal 
Government.  Money  is  the  common  standard  by  which  the  value 
of  all  articles  of  merchandise  and  real  estate  is  measured  or  deter- 
mined. Were  it  left  to  the  States  to  coin  money,  there  would  be  no 
uniformity  in  the  standard  of  value ;  depending,  as  it  would,  on 
State  lines  and  boundaries. 

§  2.  There  are   several  advantages  arising  from  uniformity  in 
value  of  the  money  of  the  country ;  and  these  could  not  be  secured 
were  the  power  to  coin  it  distributed  among  an  indefinite  number  of 
States.     The  Continental  Congress  was  empowered  by  the  Articles 
of   Confederation  to  exercise  "the  sole  and  exclusive  right  and 
power  of  regulating  the  alloy  and  value  of  coin  struck  by  their  own 
authority  or  by  that  of  the  States."     But  the  country  suffered 
great  inconvenience  for  want  of  uniformity  of  coinage  among  the 
States.     The  advantages  arising  from  placing  this  power  exclusively 
in  the  hands  of  Congress  are,  — 
1st.  The  facilitation  of  exchanges  at  home  and  abroad. 
2d.    The  encouragement  and  stimulus  which  it  imparts  to  com- 
merce. 
8d.    The  barrier  which  it  erects  against  embarrassments  arising  from 

undue  and  forced  scarcity. 
4th.  It  insures  unjjformity  of  value,  as  it  insures  uniformity  of 
alloy. 

§  3.  The  total  coinage  of  money  in  this  country,  from  1849  to 


170  ANALYSIS   OF   CIVIL  GOVERNMENT.     [Part  IT. 

1867,  was  eight  hundred  and  seventy-four  millions  of  dollars.  This 
embraces  nearly  the  entire  period  since  the  gold-fields  of  California 
came  into  the  possession  of  the  United  States.  Coin  is  manufac- 
tured at  a  place  called  "the  Mint."  The  Mint  is  located  in  the 
city  of  Philadelphia,  having  branches  in  New  York,  San  Francisco, 
and  Denver. 

2. -TO  REGULATE  THE  VALUE  OF  DOMESTIC  COIN. 

§  4.  This  is  a  power  conferred  on  Congress  expressly  by  the  Con- 
stitution, although  it  is  implied  in  the  power  to  coin  money.  This 
is  especially  for  the  purpose  of  securing  entire  uniformity  of  value, 
in  order  that  it  may  pass  from  hand  to  hand  in  business  transactions ; 
obviating  the  necessity  of  a  test  being  applied  to  each  piece  of 
money  in  each  commercial  transaction.  Every  piece  of  money  is 
stamped  in  such  a  manner  as  to  indicate  its  precise  value. 

3.-r0REIGN  COIN. 

§  5.  There  was  no  provision  in  the  Articles  of  Confederation  for 
fixing  the  value  of  foreign  coin.  In  the  Constitution,  this  power  is 
given  to  Congress.  Without  the  power  to  regulate  the  value  of 
foreign  coin,  it  would  be  difficult  to  regulate  the  value  of  domestic 
coin. 

§  6.  Were  it  not  for  this  power,  difierent  States  might  attach 
different  values  to  the  same  piece  of  foreign  coin.  Massachusetts 
might  call  a  piece  of  English  money,  known  as  a  sovereign,  five 
dollars ;  and  New  York,  four  dollars.  A  citizen  of  Massachusetts 
owing  a  citizen  of  New  York  five  thousand  dollars,  to  be  paid  in 
Boston,  could  compel  the  latter  to  accept  a  thousand  sovereigns  in 
payment,  on  which  the  citizen  of  New  York  would  lose  a  thousand 
dollars  if  he  used  the  money  at  home . 

§  7.  This  would  unsettle  the  value  of  our  own  coin  as  between 
those  two  States,  and  so  in  all  other  States  where  these  discrimi- 
nations prevailed.  Five  thousand  dollars  American  gold  would  be 
worth  much  less  in  New  York  than  in  Massachusetts.  Not  only 
60,  but  foreign  coin  would  cease  to  possess  any  fixed  and  definite 
value  by  which  to  determine  the  value  of  other  things,  and,  in 
unsettling  their  value,  would  unsettle  itself.    .  In  short,  foreigu  coin 


Part  II.]  POWERS  OF  CONGRESS.  171 

would   become   an   article   of  commerce  the   same   as   any  other 
commodity.     It  would  soon  be  the  same  with  American  coin. 

We  see,  therefore,  that  the  power  to  regulate  the  value  oi  foreign 
coin  properly  belongs  with  the  power  to  coin  money,  and  regulate 
its  value,  in  order  to  prevent  endlesss  confusion,  as  well  as  the 
most  serious  embarrassments  to  the  commercial  interests  of  the 
country. 

4. -WEIGHTS  AND  MEASURES. 

§  8.  The  power  to  fix  the  standard  of  weights  and  measures  was 
doubtless  given,  says  Judge  Story,  "from  like  motives  of  policy, 
for  the  sake  of  uniformity  and  the  convenience  of  commerce. 
Hitherto,  however,  it  has  remained  a  dormant  power,  from  the  many 
difficulties  attendant  upon  the  subject,  although  it  has  been 
repeatedly  brought  to  the  attention  of  Congress  in  most  elaborate 
reports. 

§  9.  "  Until  Congress  shall  fix  a  standard,  the  understanding 
seems  to  be  that  the  States  possess  the  power  to  fix  their  own 
weights  and  measures;  or,  at  least,  the  existing  standards  at  the 
adoption  of  the  Constitution  remain  in  full  force.  Under  the  Con- 
federation, Congress  possessed  the  like  exclusive  power."  But 
the  exercise  of  the  power  was  neglected. 

«.  — BANKRUPT  LAWS. 

§  10.  The  power  to  pass  or  establish  uniform  laws  on  the  subject 
of  bankruptcies  is  classed  here  as  among  the  commercial  interests 
of  the  government.  The  author  had  some  doubt,  at  first,  about  the 
propriety  of  placing  it  here  ;  but  on  looking  closely  at  the  objects 
of  this  power,  the  origin  and  history  of  bankrupt  laws  in  other  coun- 
tries, the  views  entertained  by  the  fathers  of  the  Constitution,  a 
single  paragraph  in  "  The  Federalist,"  and  the  commentaries  of 
that  profound  jurist,  Judge  Story,  all  doubts  that  it  is  commercial 
vanish. 

§  11.  The  power  to  pass  laws  on  the  subject  of  bankruptcies 
originally  belonged  to  the  States,  as  one  of  their  prerogatives  of 
sovereignty.  Of  course,  laws  passed  on  this  subject  by  the  States 
would  lack  uniformity,  and  consequently,  in  many  instances,  would 


172  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 

work  great  injustice.  A  law  of  this  character  is  regarded  as  indis- 
pensable to  the  commercial  interests  of  the  country. 

§  12.  A  bankrupt  is  one  who  owes  more  than  he  can  pay.  The 
objects  of  the  law  are  twofold  :  — 

First,  to  enable  creditors  to  secure  an  appropriation  of  all  the 
property  of  a  debtor  who  fails  to  pay  his  debts ;  allowing  the  courts, 
in  such  cases,  to  give  the  debtor  a  complete  discharge  from  all  in- 
debtedness. Second,  to  relieve  unfortunate  debtors,  on  their  own 
application  and  surrender  of  all  then-  property,  from  perpetual  bond- 
age to  their  creditors,  and  liability  to  imprisonment. 

§  13.  An  insolvent  law  must  not  be  confounded  with  a  bankrupt 
law.  An  insolvent  law  simply  relieves  from  a  liability  to  impris- 
onment for  debt,  on  the  surrender  of  the  debtor's  property  to  the 
creditors :  it  does  not  discharge  the  indebtedness  itself.  In  such 
cases,  the  future  property  of  the  debtor  may  be  seized  for  his  debts, 
and  appropriated  to  their  payment.  On  the  contrary,  a  discharge 
under  a  bankrupt  law  annihilates  the  debts  themselves,  and  the 
creditors  have  no  further  claims. 

§  14.  Insolvent  laws  were  in  existence  forty  or  fif'y  years  ago 
in  many  of  the  States,  when  imprisonment  for  debt  was  almost  or 
quite  universal  throughout  the  country  ;  but  they  were  State  laws. 
In  several  of  the  States,  they  are  still  in  operation.  Under  the 
power  to  pass  uniform  laws  on  the  subject  of  bankruptcies,  a  bank- 
rupt law  was  passed  in  1800,  but  repealed  in  1803;  another  was 
passed  in  1841,  but  repealed  a  year  or  two  afterwards.  A  law  of 
this  kind  is  now  in  existence,  passed  March  2,  1867. 

§  15.  The  Supreme  Court  of  the  United  States  has  decided  that 
insolvent  laws  passed  by  the  States  are  constitutional,  but  that 
bankrupt  laws  passed  by  the  States  are  not  constitutional ;  because 
such  laws  impair  the  obligation  of  contracts.  Congress  alone  has 
this  power. 

ART.  IV.  — PENALTIES. 

1.   To  provide  for  the  punishment  of  counterfeiting, 
\st.   The  securities  of  the  United  States. 
2d.  The  current  coin  of  the  United  States.   3I« 


Part  II.]  POWERS   OF   CONGRESS.  173 

2.   To  define  piracies  and  felo7iie$  committed  on  the  high 

seas^  and  offenses  against  the  late  of  nations. 
Z,  Also  to  jyrovide  for  punishing  these  crimes.  3^.    *• 
4.   To  declare  the  punishment  of  treason.   70. 

1.  —  COUNTERFEITING. 

§  1.  The  power  to  punish,  or  to  'prescribe  the  punishment  as  it  is 
here  to  be  understood,  for  counterfeiting  the  securities  and  current 
coin  of  the  United  States,  is  a  necessity  growing  out  of  the  power 
of  Congress  to  coin  money  and  to  regulate  its  value.  The  temptation 
to  counterfeiting  is  very  great ;  holding  out  tlie  hope,  as  it  does,  of 
great  rewards  for  comparatively  little  laLor. 

§  2.  Men  of  mechanical  genius  and  skill,  hut  wanting  integi'ity, 
are  to  be  found  in  every  conmnmity,  who  are  willing  to  take  the 
risks  of  detection  and  punishment ;  hcping,  however,  to  escape  both. 
The  finest  artistic  ingenuity  is  often  prostituted  to  this  purpose,  find 
too  often  with  success.  Counterfeiting  consists  in  making  imitations 
of  coin,  bank-bills,  or  other  securities,  approaching  so  near  to  a  like- 
ness of  the  originals  as  to  deceive  a  person  of  but  ordinary  expe- 
rience. 

§  3.  Without  the  power  to  attach  severe  penalties  to  crimes  of 
this  grade,  the  securities  and  coin  of  the  United  States  would  scon 
become  comparatively  worthless ;  the  country  would  be  filled  with 
spurious  bills,  bonds,  and  coin;  and  it  would  not  be  long  before 
money  would  cease  to  be  a  medium  of  exchange  among  the  masses, 
who  are  unskilled  in  detecting  the  base  from  the  genuine. 

2.-rmACIES  AND  FELONIES   ON  THE  HIGH   SEAS. 

§  4.  Congress  is  vested  with  power  to  define  and  punish  piracies 
and  felonies  when  committed  on  the  higli  seas.  Any  felony  commit- 
ted on  the  high  seas  comes  under  the  common-law  definition  of 
piracy.  By  common  law,  piracy  can  not  ba  committed  on  land, 
unless  it  be  on  an  island  of  the  tea.  Sir  William  Blackstone 
defines  piracy  at  common  law  to  consist  in  committing  those  acts  of 
robbeiy  and  depredation  on  the  high  seas,  which,  if  committed  on 
land,  would  amount  to  felony. 


174  ANALYSIS   OF  CIVIL  GOVERNMENT.     [Part  II. 

§  5.  The  same  author  says  that  piracy  is  an  oftense  against  the 
universal  law  of  society.  A  pirate  renounces  all  the  benefits  of 
society  and  government,  and  reduces  himself  afresh  to  the  savage 
state  of  nature,  and  declares  war  against  all  mankind.  By  the 
statutes  of  England,  however,  various  modified  definitions  have 
been  given  to  this  crime,  essentially  changing  its  common-law  import. 
Statutes  are  often  passed  changing  the  common-law  definitions  of 
crimes. 

§  6.  In  pursuance  of  this  power  to  define  piracy,  Congress  has 
passed  several  acts  on  the  subject.  For  instance,  in  1820,  the 
foreign  slave-trade  was  made  piracy,  punishable  by  death.  From 
the  foundation  of  our  government  until  1808,  the  foreign  slave-trade 
was  lawful  commerce.  Congress  has  the  power  to  enlarge  or  con- 
tract the  definition  of  piracy  from  its  common-law  meaning. 

§  7.  Felony  is  another  word  of  common-law  definition.  The 
author  last  quoted  defines  it  to  be  every  species  of  crime  which  at 
common  law  occasioned  the  forfeiture  of  the  lands  and  goods  of  the 
criminal ;  and  this  happens  most  frequently  in  those  crimes  for  which 
a  capital  punishment  is  or  was  inflicted.  This  definition  has  under- 
gone various  changes  by  act  of  the  British  Parliament. 

§  8.  By  the  clause  in  the  Constitution  under  consideration,  Con- 
gress is  at  liberty  to  depart  from  the  common-law  meaning  of  the 
word  "  felony."  Felony  can  hardly  be  said  to  be  a  crime;  for  it  is 
a  word  of  generic  import,  including  a  large  number  of  crimes,  such 
as  murder,  larceny,  arson,  burglary,  &c.  When  committed  on 
the  high  seas,  it  could  not  properly  be  left  with  the  States  to  define 
it,  as  the  jurisdiction  of  offenses  not  committed  within  State  limits 
must  necessarily  be  restricted  to  the  Federal  courts. 

§  9.  The  high  seas  are  defined  by  Judge  Story  to  **  embrace  not 
only  the  waters  of  the  ocean  which  are  out  of  sight  of  land,  but 
the  waters  on  the  sea-coast  below  low- water  mark,  whether  within 
the  territorial  boundaries  of  a  nation  or  of  a  domestic  State." 

§  10.  The  power  to  define  offenses  against  the  law  of  nations 
must  be  considered  here  as  restricted  to  American  citizens.  There 
is  a  responsibility  resting  on  every  government,  which  it  cannot  ig- 
nore, with  regard  to  the  conduct  of  its  own  citizens.     Governments 


Part  II.]  POWERS  OF  CONGRESS.  175 

are  responsible  in  some  sense  to  neighboring  nations  for  all  violations 
of  the  laws  of  nations  by  their  citizens.  Out  of  this  responsibility 
may  grow  the  issues  of  war. 

3.- PUNISHING  THESE  CRIMES. 

§  11.  The  same  considerations  that  render  it  proper  for  Con- 
gress to  have  the  power  of  defining  these  crimes,  also  render  it 
proper  that  they  should  have  the  power  of  annexing  to  them  suita- 
ble penalties.  Criminal  law  would  be  nugatory  without  penalties. 
On  account  of  our  relations  to  foreign  neighboring  nations,  it  seems 
in  the  highest  degree  proper  that  this  power  of  defining  and  pun- 
ishing ofienses  of  the  class  herein  specified  should  belong  exclu- 
sively to  the  National  Legislature. 

4.-rUNI8HMENT  FOR  TREASON. 

§  12.  The  Constitution  defines  the  crime  of  treason,  but  leaves 
it  with  Congress  to  prescribe  its  punishment.  In  1790,  Congress 
affixed  to  this  crime  the  penalty  of  death.  In  1862,  Congress 
passed  another  act,  punishing  treason  with  death,  or  imprisonment 
for  not  less  than  five  years,  and  a  fine  of  ten  thousand  dollars,  and 
the  slaves  of  the  party  convicted  to  be  free.  This  act  was  passed 
before  the  abolition  of  slavery  in  the  United  States. 

ART.  V.~  POSTAL. 

1.  To  establish  post-offices. 

2.  To  establish  post-roads, 

1.- POST-OFFICES. 

§  1.  The  power  vested  in  Congress  by  the  Constitution  to  estab- 
lish post-offices  and  post-roads  is  presumed  to  include  all  other 
powers  necessary  to  render  them  effective.  Any  plan  that  should 
leave  the  supervision  of  the  post-office  department  in  the  hands  of 
the  several  States  would  necessarily  be  inefficient. 

§  2.  The  several  States,  and  the  citizens  thereof,  are  botind  to- 
gether by  ties  of  interest,  commerce,  and  affection,  rendering  it 
indispensable  that  they  should  have  some  reliable  and  uniform  means 
of  communication  with  each  other.     These  benefits  could  not  be 


176  ANALYSIS   OF  CIVIL   GOVERNMENT.     [Part  IL 

derived  from  the  adoption  of  as  many  diiferent  postal  systems  as 
there  are  States  in  the  Union. 

§  3.  Besides,  the  burdens  would  be  unequal.  It  is  far  more  ex- 
pensive to  transport  the  mails  through  the  sparsely-populated  regions 
of  the  West,  South,  and  South-west,  in  proportion  to  the  amount  of 
matter  conveyed  and  distance  traveled,  than  it  is  through  tlie  more 
densely  inhabited  regions  of  the  East  and  North.  Yet  it  is  in  a 
high  degree  important  to  the  whole  country  that  the  forest  and  the 
prairie  be  subjected  to  the  hand  of  cultivation. 

§  4.  And  who  will  become  pioneer,  if  he  must  be  shut  out  from 
all  communication  with  that  world  which  he  has  left  behind  ?  Hardly 
one  in  a  thousand  of  the  hardy,  industrious  settlers  who  have  peo- 
pled the  "Western  and  South-western  States  would  have  left  their 
homes  in  the  East  to  undergo  the  privations  of  a  new  country, 
were  there  no  facilities  for  the  transmission  of  intelligence  to  and  from 
the  friends  of  other  days. 

§  5.  The  general  superintendence  and  direction  of  the  post-office 
department  is  under  the  care  of  the  Postmaster-General.  He  has 
the  establishing  of  post-offices,  appoints  most  of  the  postmasters, 
and  has  the  letting  of  the  contracts  for  carrying  the  mails.  For 
some  of  the  larger  offices,  to  the  number  of  nearly  a  thousand,  the 
appointments  of  postmasters  is  made  on  nomination  of  the  President, 
by  and  with  the  advice  and  consent  of  the  Senate. 

§  6.  Few  of  the  pupils,  or  even  of  the  teachers,  of  the  common 
schools  of   the  present  day,  remember  the  days  of  dear  postage. 
Until  1845,  postage  was  much  higher  than  at  present.     Letter  post- 
age was  as  follows  :  — 
Each  letter  conveyed  less  than  30  miles     . 

over  30  and  less  than  80  miles 
'•    80  and  less  than  150  miles 
"    150  and  less  than  400  miles 
•'    400  miles  ...         25    cts. 

§  7.  March  3,  1845,  Congress  passed  an   act  reducing  the  rates 
of  letter  postage  thus :  — 
Each  letter  or  package  weighing  less  than  half  an  ounce, 

if  carried  less  than  300  miles         .         .         .         .        5  cts. 
Over  300  miles 10  cts. 


6 

cts. 

10 

cts. 

121 

cts. 

18|  cts. 

Part  II.]  POWERS  OF  CONGKESS.  177 

§  8.  At  the  second  session  of  the  Thu-ty-first  Congress,  which 
convened  Dec.  2,  1850,  another  act  was  passed,  reducing  still 
lower  the  price  of  letter  postage,  to  take  effect  July  1, 1851.  Under 
this  act,  — 

Each  letter  prepaid,  weighing  not  over  half  an  ounce,  and 
conveyed  not  over  3,000  miles,  wholly  within  the 

United  States 3  cts. 

When  the  same  shall  not  be  prepaid         .  ...     5  cts. 

For  any  distance  exceeding  3,000  miles,  double  these  rates. 

Double  weight  (that  is,  one  ounce),  double  charges;  triple  weight, 
triple  charges ;  and  so  on  ;  every  additional  weight  of  half  an  ounce 
or  less  to  be  charged  with  an  additional  single  postage. 

For  letters  sent  to  foreign  countries,  various  rates  were  estab- 
lished (higher  than  these),  the  rates  depending  on  the  countries 
to  which  the  letters  are  sent. 

§  9.  When  at  first  cheap  postage  was  established,  there  was  a 
great  deficiency  in  the  finances  of  the  post-office  department  for 
several  years.  The  income  did  not  equal  the  expenses  until  1861, 
when  the  mails  were  withdrawn  from  the  insurgent  States  of  the 
South.  On  account  of  the  less  expense  of  transporting  the  mails 
at  the  North  in  proportion  to  receipts,  the  post-office  department 
exhibited  a  better  financial  condition  after  the  mails  were  withdrawn 
from  the  Southern  States. 

§  10.  The  report  of   the  Postmaster- General,   dated  Nov.   26, 
1887,  shows  that  there  were  in  operation  in  the  United  States,  June 
30,  1867,  post-offices  to  the  number  of  25,162 ;  and  that  the 
Receipts  from  all  sources  during  the  year  were         $19,978,693.54 
Expenditures  for  the  same  time         .         .         .       19,235,483.46 


Receipts  over  expenditures  ....     $743,210.08 

§  11.  It  is  encouraging  to  know,  that,  under  the  cheap-postage 
plan  with  which  the  American  people  are  now  favored,  the  post-office 
department  is  self-sustaining.  The  introduction  of  cheap  postage 
encouraged  and  stimulated  correspondence  of  all  kinds  to  such 
extent  as  to  produce  this  result.  Some  idea  may  be  formed  of  the 
progress  of  the  postal  system  in  this  country,  when  it  is  known,  that, 
12 


178  ANALYSIS   OF   CIVIL  GOVERNMENT.     [Part  II. 

at  the  adoption  of  our  Constitution  in  1789,  there  were  but  seventy- 
five  post-offices  in  the  United  States.  Now,  including  offices  soon 
to  be  opened  at  the  South,  which  were  closed  during  the  Rebellion, 
there  are  not  far  from  thirty  thousand.  In  1790,  the  receipts  of 
the  department  were  $37,935;  m  1867,  almost  twenty  millions. 
The  aggregate  number  of  miles  traveled  in  carrying  the  mail,  in 
1790,  was  7,365  ;  in  1867,  almost  seventy-two  millions. 

2. -POST-ROADS. 

§  12.  It  has  not  been  necessary,  except  in  a  few  instances,  that 
Congress  should  exercise  their  power  to  establish  post-roads.  In 
some  cases,  however,  this  power  has  been  found  necessary,  and  Con- 
gress has  used  it.  But  generally  the  roads  already  opened  by  the 
inhabitants  of  the  country  through  which  the  mails  are  conveyed 
have  been  found  sufficient.  They  are  regularly  selected,  and  de- 
clared, however,  to  be  post-roads,  before  being  used  as  such.  The 
waters  on  our  rivers  and  lakes,  over  which  travel  is  public  and  reg- 
ular, are,  in  many  instances,  established  as  post-roads  in  this  way. 

§  13.  June  30,  1867,  there  were  6,930  mail-routes  in  operation 
within  the  limits  of  the  United  States.  The  aggregate  length  of 
these  mail-routes  is  180,921  miles.  The  aggregate  cost  of  carrying 
the  mails  over  these  routes  for  the  year  ending  June  30,  1867,  was 
$8,410,184.00.  The  mails  are  carried  by  private  individuals,  or 
by  railroad  or  steamboat  companies,  the  contract  being  made  with 
the  Postmaster-General  in  behalf  of  the  United  States.  He  adver- 
tises for  bidders,  and  lets  the  contract  in  each  case  to  the  lowest 
responsible  bidder.  Bonds  are  given  by  the  mail-carriers  to  the 
government,  with  good  and  acceptable  sureties,  for  the  faithful  exe- 
cution of  the  contract.  Those  who  are  in  immediate  charge  of  the 
mails  are  sworn  to  the  faithful  discharge  of  their  duties. 

ART.  VI.  — PATENT  AND  COPY  EIGHTS. 

To  provide  for  the  progress  of  science  and  the  useful  arts 
by  granting^  for  limited  times,  — 
1st.   To   authors,  the   exclusive  right   to  their  respective 
writings. 


Part  II.]  POWERS  OF  CONGRESS.  179 

2d.   To  inventors,  the  exclusive  right  to  their  respective 
discoveries.  33. 

1.— COPYRIGHT. 

§  1.  The  power  to  make  provisions  for  patent  and  copy  rights  did 
not  belong  to  Congress  under  the  Confederation  ;  but,  in  the  Con- 
stitutional Convention,  there  was  no  opposition  to  these  provisions. 
The  necessity  of  some  law  of  this  kind  was  not  only  conceded  by 
that  body,  but  by  the  universal  acquiescence  of  the  country. 

§  2.  Few  men  who  are  wealthy  are  disposed  to  take  the  field  of 
authorship,  however  competent  they  may  be.  This  rule,  however, 
has  its  exceptions.  But  the  poor  man,  it  will  be  admitted,  can  not 
afford  to  devote  himself  to  the  production  of  valuable  books,  if  the 
fruits  of  his  industry  may  be  appropriated  by  others  without  reward. 

§  3.  The  States  could  not  afibrd  the  necessary  protection  to 
authors  ;  for  their  legislation  could  only  cover  their  own  respective 
territorial  boundaries.  Few  books  would  be  written  requiring  elab' 
orate  authorship,  the  sale  of  which,  in  the  estimation  of  the  author, 
was  destined  to  be  confined  to  the  limits  of  a  single  State.  That  a 
man  has  the  same  right  to  the  labor  of  his  brains  that  he  has  to  the 
labor  of  his  hands  will  hardly  be  questioned. 

§  4.  Judge  Story  says,  "  No  class  of  men  are  more  meritorious, 
or  are  better  entitled  to  public  patronage,  than  authors  and  invent- 
ors. They  have  rarely  obtained,  as  the  histories  of  their  lives  suffi- 
ciently establish,  any  due  encouragement  and  reward  for  their  inge- 
nuity and  public  spirit.  They  have  often  languished  in  poverty, 
and  died  in  neglect ;  while  the  world  has  derived  immense  wealth 
from  their  labors,  and  science  and  the  arts  have  reaped  unbounded 
advantage  from  their  discoveries." 

§  5.  Under  the  laws  of  Congress,  the  steps  are  very  simple  to 
secure  a  copyright.  A  copyright  may  be  secured  to  authors  for 
books,  maps,  charts,  musical  compositions,  cuts,  and  engravings,  or 
for  any  other  literary  and  scientific  productions.  The  copyi'ight  ex- 
tends for  twenty-eight  years :  and  if,  at  the  end  of  that  time,  the 
author  is  still  living,  he  may  obtain  its  extension  for  fourteen  years 
longer  ;  or,  if  dead,  his  living  representatives  may  obtain  its  exten- 


IbO  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 

sion.  The  author,  or  he  and  his  representatives,  therefore,  enjoy  a 
monopoly  of  the  sale  of  his  productions  for  forty-two  years. 

§  6.  The  steps  to  secure  a  copyright  are  these  :  Before  publica- 
tion, a  printed  copy  of  the  work  proposed  to  be  published,  or  its 
titlepage,  must  be  deposited  in  tbe  office  of  the  Clerk  of  the  District 
Court  of  the  United  States  in  the  district  of  the  author's  residence. 
Within  three  months  after  publishing  the  work,  a  full  copy  of  the 
work  must  be  delivered  to  the  clerk  aforesaid,  which  he  transmits 
to  the  Secretary  of  State,  to  be  kept  in  his  office  at  the  seat  of 
government.  Within  the  same  period,  a  copy  must  be  furnished  to 
the  Smithsonian  Institute  at  Washington,  and  also  one  to  the  Con- 
gressional Library. 

§  7.  The  owner  of  the  copyright  must  give  notice  to  every  reader 
of  his  work  that  he  has  secured  the  copyright  according  to  act  of 
Congress.  This  notice  is  printed  on  the  titlepage,  or  on  the  page 
succeeding,  in  the  following  words :  — 

*•  Entered  according  to  act  of  Congress,  in  the  year  ,  by 

(the  author),  in  the  Clerk's  office  of  the  District  Court 
of  the 

These  words  must  be  published,  or  other  words  equivalent  to 
them,  in  every  edition  of  the  work.  The  expense  of  securing  a 
copyright  is  but  trifling,  —  one  or  two  dollars, 

§  8.  An  act  of  Congress  passed  Feb.  18,  1867,  requires  every 
proprietor  of  a  book,  pamphlet,  map,  chart,  musical  composition, 
print,  engraving,  or  photograph,  for  which  a  copyright  shall  have 
been  obtained,  to  deliver  a  printed  copy  of  the  same  to  the  Con- 
gressional Library  within  one  month  after  publication.  Penalty  for 
neglect,  twenty-five  dollars.  The  publication  may  be  transmitted 
free  of  postage  if  the  words  "  copyright  matter"  be  plainly  written 
on  the  outside ;  and  postmasters  shall  give  a  receipt  for  the  same  if 
requested. 

2. -PATENT-RIGHT. 

§  9.  Patents  are  issued  by  the  patent-office  at  Washington,  giving 
the  inventor  of  any  new  and  useful  machine,  instrument,  manufac- 
ture, or  composition  of  matter,  or  any  new  and  useful  improvement 
of  them,  the  monopoly  in  their  manufacture  and  sale.     This  patent- 


PartII.]  powees  of  congress.  181 

right  is  secured  to  the  inventor  by  the  issue  of  what  are  called 
letters-patent.  To  obtain  letters-patent  the  applicant  must  make  a 
distinct  specification,  giving  a  full  and  complete  description  of  his 
invention ;  and,  in  cases  admitting  of  drawings  and  models,  these  must 
be  made,  and  all  deposited  with  the  Commissioner  of  Patents. 

§  10.  The  applicant's  discovery  or  invention  must  not  have  been 
in  use  or  on  sale  more  than  two  years  before  making  his  application 
for  letters-patent.  The  patent-office  belongs  to  the  Department  of 
the  Interior.  The  appUcant  must  swear  that  he  believes  himself  to 
be  the  original  inventor  of  whatever  he  seeks  to  have  patented. 

§  11.  Examination  is  made  at  the  patent-office,  not  only  of  that 
which  is  proposed  to  be  patented,  but  of  other  models,  drawings, 
and  specifications  deposited  in  the  office,  in  order  to  ascertain 
whether  there  is  any  conflict  of  claims.  If  none  are  found,  and  that 
which  is  offered  is  regarded  as  patentable,  letters-patent  are  issued 
under  the  seal  of  the  Department,  giving  to  the  patentee,  his  heu:s 
and  assigns,  the  exclusive  right  to  control  the  manufacture  and  sale  of 
the  patented  article  for  fourteen  years.  Letters-patent  cost  the  pat- 
entee thirty-five  dollars,  fifteen  of  which  must  accompany  the  appli- 
cation :  twenty  more  must  be  paid  on  their  issue. 

ART.  VII. -WAR. 

1.  To  declare  war, 

2.  To  grant  letters  of  marque  and  reprisal. 

3.  To  make  rules  concerning  captures  on  land  and  water.  30« 

4.  To  raise  and  support  armies.  3T. 

5.  To  provide  and  maintain  a  navg.    38. 

6.  To  make  rules  for  the  government  and  regulation  of  the 

land  and  naval  forces.    30. 

7.  To  provide.,  \st.  For  organizing,  arming,  and  discij^lin- 

ing  the  militia. 
2d.   For  governing  such  part  of  tJie  militia  as  m,ay  he 

employed  in  the  service  of  the  United  States.   4:1  • 
Zd.   For  calling  forth  the  militia,  — 

First,  To  execute  the  laws  of  the  Union  / 

Second,  To  suppress  insurrectio7is  ; 

Third,  To  repel  invasions.   40. 


182  ANALYSIS  OF  CIVIL  GOVEENMENT.     [Part  II. 

1.  —  DECLARATION  OF  WAR. 

§  1.  A  declaration  of  war  is  a  solemn,  foi-mal,  and  delilTerate  no- 
tice to  all  the  world  in  general,  and  particularly  to  the  citizens  of 
both  nations  involved,  that  hostilities  actually  exist,  or  are  about  to 
commence.  The  nation  declaiing  war  generally  recites  in  the  dec- 
laration the  wrongs  and  aggressions  of  which  complaint  is  made ; 
thus  making  a  direct  appeal  to  the  great  family  of  nations  in  justi- 
fication of  the  measure.  "  A  decent  respect  for  the  opinions  of  man- 
kind," as  well  as  for  the  rights  of  neutral  nations  who  may  have 
indirect  interests  in  the  conflict,  could  scarcely  require  less.  A  war 
between  two  powerful  nations  jars  the  commercial  interests  of  every 
nation  on  the  globe. 

§  2.  The  power  to  declare  war  is  one  of  the  prerogatives  of  the 
sovereign  of  Great  Britain  ;  and  it  belongs  to  the  sovereigns  of 
most  other  countries.  Sir  William  Blackstone  says  that  "  the  right 
of  making  war,  which  by  nature  subsisted  in  every  individual,  is 
given  up  by  all  private  persons  that  enter  into  society,  and  is  vested 
in  the  sovereign  power.  This  right  is  given  up,  not  only  by  indi- 
viduals, but  by  the  entire  body  of  the  people  who  are  under  the 
dominion  of  the  sovereign." 

§  3.  In  this  country,  the  will  of  the  people  is  the  sovereign  ;  at 
least,  this  is  our  theory.  Could  that  will  be  definitely  ascertained 
without  delay,  the  power  to  declare  war  should  be  vested  in  the 
people.  But,  practically,  the  will  of  the  people  can  be  known 
through  their  representatives  only,  and  hence  the  war-power  is  vested 
in  Congress. 

§  4.  In  the  Convention  that  formed  the  Constitution,- there  was  a 
variety  of  opinion  on  the  propriety  of  placing  this  power  in  the 
hands  of  Congress.  One  class  of  members  was  for  vesting  it  in  the 
Senate  only ;  a  second  for  vesting  it  in  the  President ;  a  third  fa- 
vored the  plan  of  conferring  it  on  both  Senate  and  President ;  a  fourth 
was  for  giving  it  to  Congress,  and  this  proposition  prevailed. 

§  5.  Before  a  declaration  of  war  can  be  made,  the  subject  must 
receive  the  most  solemn  and  deliberate  attention  of  the  representa- 
tives of  the  people  in  Congress  assembled.  A  declaration  of  war 
is  an  exercise  of  the  highest  prerogative  of  national  sovereignty ; 


Part  II.]  POWERS  OF  congress.  183 

and  its  effects  on  other  nations  and  individuals,  as  well  as  on  the 
nations  and  individuals  more  immediately  involved,  are  so  direful 
and  calamitous,  that  it  can  not  be  justified  except  as  a  last  resort. 

§  6.  When  a  formal  and  solemn  declaration  of  war  has  been 
made  by  Congress,  peace  can  be  secured  only  through  the  negotia- 
tions of  ambassadors  or  ministers  representing  the  contending  pow- 
ers. After  the  ministerial  or  ambassadorial  conference  has  agreed 
on  the  terms  of  peace,  the  power  to  accept  or  reject  those  terms  on 
the  part  of  the  United  States  belongs  to  the  President  and  Senate. 
As  we  have  seen  in  considering  the  Senate-powers,  it  requires  a 
majority  of  two-thirds  of  the  members  present  to  ratify  any  treaty, 
including  a  treaty  of  peace. 

2.-MAKQUE   AND  REPRISAL. 

§  7.  The  power  to  declare  war  doubtless  implies  the  power  to 
grant  letters  of  marque  and  reprisal.  Letters  of  this  kind  are 
sometimes  issued  by  the  government  to  prevent  the  necessity  of  a 
resort  to  war,  though  they  are  incident  to  the  war-making  power. 
They  are  frequently  issued  before  a  declaration  of  war.  They  are 
grantable  by  the  law  of  nations,  says  Blackstone,  whenever  the  sub- 
jects of  one  State  are  oppressed  or  injured  by  those  of  another,  and 
justice  is  denied  by  that  State  to  which  the  oppressor  belongs. 

§  8.  Marque  signifies,  as  here  used,  a  license  from  the  gov- 
ernment to  pass  beyond  the  limits  or  jurisdiction  of  one's  own  coun- 
try ;  and  reprisal  signifies  a  taking  in  return.  Letters  of  marque 
and  reprisal  are  a  commission  from  the  government  authorizing  the 
bearer  to  pass  beyond  the  boundaries  of  his  own  country  for  the 
purpose  of  capturing  prizes  of  the  enemy,  consisting  of  their  persons 
or  goods.  Whatever  is  so  captured  is  held  under  certain  regulations 
until  satisfaction  shall  be  made  to  the  government  or  individuals 
injured. 

§  9.  This  commission  saves  the  bearer  of  it,  and  his  crew,  from 
the  liability,  if  captured  themselves,  of  being  tried,  convicted,  and 
punished  as  pirates.  In  case  it  so  happens  in  their  conflicts  that 
they  are  taken  prisoners,  they  have  the  protection  of  their  govern- 
ment that  they  shall  be  treated  as  prisoners  of  war ;  and,  in  case 


184-  ANALYSIS   OF  CIVIL  aOVERNMENT.     [Part  II. 

they  should  be  treated  otherwise,  their  own  government  would  re- 
taliate. 

3.  -  CAPTURES. 

§  10.  But  it  is  necessary  that  rules  should  be  adopted  concerning 
captures  made,  whether  on  land  or  water.  Congress  is  authoiized 
by  the  Constitution  to  make  these  rules,  which,  when  made,  become 
laws  the  same  as  any  other  laws ;  and,  for  the  purpose  of  enforcing 
them,  courts  of  admiralty  have  been  established,  whose  business  it 
is  to  inquire  into  the  legality  of  the  course  pursued  in  taking  these 
prizes.  Persons  might  go  out  in  pursuit  of  prizes,  having  no  au- 
thority, or,  having  authority,  might  capture  from  the  ships  of 
neutrals ;  or  an  illegal  course  might  be  pursued  after  capture,  though 
the  captui-e  itself  were  legal. 

§  11.  "The  cognizance  of  all  captures  or  prizes,"  says  Black- 
stone,  "  and  their  incidents,  belong  exclusively  to  the  courts  of  the 
country  to  which  the  captors  belong,  and  from  whom  they  derive  their 
authority  to  make  their  captures.  The  remedy  for  illegal  acts  of 
capture  is  by  the  institution  of  proper  prize-proceedings  in  the  prize- 
courts  of  the  captors." 

4.- THE   ARMY. 

§  12.  The  other  war-powers  vested  in  Congress  would  be  utterly 
useless  without  the  power  to  raise  and  support  armies.  Probably  no 
power  of  Congress  mentioned  in  the  Constitution  met  with  so  strong 
opposition  before  the  people  as  this  one  to  raise  and  support  armies. 
It  was  urged  with  great  force  and  vehemence,  that,  being  unlimited,  it 
would  be  dangerous  to  the  liberties  of  the  people,  and  would  finally 
result  in  the  establishment  of  a  military  despotism. 

§13.  This  clause  refers  to  the  regular  or  standing  army.  Con- 
gi'ess  had  no  such  power  under  the  Confederation.  All  they  could 
do  was  "to  agree  on  the  number  of  land-forces,  and  to  make  requisi- 
tion on  each  State  for  its  quota,  in  proportion  to  the  number  of  white 
inhabitants  in  such  State."  True,  these  requisitions  were  to  be 
binding  on  the  States ;  but  the  government  must  wait  their  conve- 
nience and  disposition. 

§  14.  The  army  is  created  by  enlistments  under  the  acts  of  Con- 
gress.    The  enlistment  is  for  five  years  in  the  regular  army.     In 


Part  II.]  POWERS  OF  CONGRESS.  185 

November,  1866,  this  branch  of  the  military  service  numbered  a  little 
over  fifty-four  thousand  men. 

5. -THE   NAVY. 

§  15.  The  Articles  of  Confederation  gave  to  Congress  the  power 
•*to  build  and  equip  a  navy."  But,  in  the  Constitutional  Conven- 
tion, the  words  "  to  provide  and  maintain  a  navy  "  were  accepted, 
as  having  greater  breadth  and  appropriateness  of  meaning. 

§  16.  The  navy  consists  of  the  entire  number  of  ships  of  war 
belonging  to  a  nation  or  people  considered  collectively.  A  navy  is 
necessary  for  the  protection  of  our  fisheries,  commerce,  and  naviga- 
tion. We  need  it  not  only  on  the  ocean,  but  on  our  lakes,  and  on 
several  of  our  rivers,  and  this  even  in  time  of  peace. 

§  17.  But,  in  time  of  war,  a  navy  becomes  indispensable  to  a  peo- 
ple whose  geographical  position  is  like  ours.  We  have  a  long  line 
of  seaboard,  through  which  we  are  exposed  to  the  depredations  of 
hostile  fleets  and  invading  armies.  Located  on  that  seaboard  are 
some  of  our  most  important,  flourishing,  and  populous  cities.  The 
possession  of  the  chief  commercial  cities  in  any  country  by  an 
enemy  in  time  of  war  gives  him  a  great  advantage  in  the  contest. 
He  can  exact  contributions  of  the  inhabitants  for  the  support  of  his 
army. 

§  18.  In  the  earlier  years  of  our  history,  our  navy  found  but 
little  favor  in  the  popular  estimation.  Judge  Story  says,  "  It  was 
not  until  during  the  late  war  with  Great  Britain  (1812),  when  our 
little  navy,  by  a  gallantry  and  brilliancy  of  achievement  almost 
without  a  parallel,  had  literally  fought  itself  into  favor,  that  the 
nation  at  large  began  to  awake  from  its  lethargy  on  this  subject,  and 
to  insist  upon  a  policy  which  should  at  once  make  us  respected  and 
formidable  abroad,  and  secure  protection  and  honor  at  home." 

§  19.  According  to  the  report  of  the  Secretary  of  the  Navy, 
dated  Dec.  3,  1866,  the  total  number  of  vessels  in  that  department 
of  the  public  sen^ice  at  that  time  was  two  hundred  and  seventy- 
eight.  Of  these,  there  were  in  commission  and  on  active  duty  one 
hundred  and  fifteen  vessels,  carrying  one  thousand  and  twenty-nine 
gunB. 


186  ANALYSIS  OF  CIVIL  GOVERNMENT.     [PaKT  II. 


6.- RULES  FOR  ARMY  AND  NAVY. 


§  20.  Nothing  need  be  said  to  vindicate  the  policy  and  necessity 
of  vesting  in  Congress  the  power  to  make  rales  for  the  government 
and  regulation  of  the  land  and  naval  forces.  It  naturally  follows 
the  power  to  raise  and  support  armies,  and  to  provide  and  maintain 
a  navy.  This  clause  was  not  in  the  first  draught  of  the  Constitution, 
as  appears  from  the  Madison  Papers  ;  but  it  was  afterwards  inserted 
as  an  amendment,  without  opposition. 


THE  MILITIA. 


§  21.  The  next  power  of  Congress  to  be  considered  is  that  of 
''providing  for,  organizing,  arming,  and  disciplining  the  militia." 
The  country  could  not  safely  rely  solely  on  its  standing  army  for  any 
and  every  emergency  that  might  arise.  The  Constitution,  therefore, 
gives  Congress  jurisdiction  over  the  militia  of  the  several  States, 
and  this  power  of  providing  for,  organizing,  arming,  and  discipluiing 
them,  as  incidental  to  that  jurisdiction.  The  States  have  the  ap- 
pointment of  the  officers  over,  and  the  training  of,  the  militia,  as  we 
shall  see  when  we  come  to  treat  of  the  rights  of  States ;  but  this 
must  be  done  as  directed  by  Congress. 

§  22.  Congress  is  authorized  also  to  make  provision  for  governing 
such  part  of  the  militia  as  may  be  employed  in  the  service  of  the 
United  States.  Rigid  discipline  and  government  have  always  been 
found  necessary  in  the  army,  whether  constituted  of  regulars  or 
militia.  This  government  must  be  uniform  to  be  salutary.  To  be 
uniform,  it  must  emanate  from  a  single  source.  It  would  not  do, 
therefore,  to  leave  the  government  of  the  militia  in  the  employ  of 
the  nation  in  the  hands  of  the  several  States  in  which  they  might 
enlist. 

§  23.  There  are  three  purposes  for  which  Congress  may  provide 
for  calling  forth  the  militia  of  the  several  States  :  — 

First,  To  execute  the  laws  of  the  Union ; 

Second,  To  suppress  insurrections ; 

Third,  To  repel  invasions. 

The  organization  of  the  militia  is  maintained  at  an  expense  com- 
paratively trifling  when  the  advantages  to  the  country  are  considered. 


Part  II.]  POWERS  OF  CONGRESS.  187 

It  saves  the  immense  cost  of  a  large  standing  army  in  time  of  peace. 
The  nation  must  have  the  means  at  its  command  for  carrying  on  a 
foreign  war,  as  well  as  for  maintaining  its  authority  at  home ;  and 
the  following  reasons  favor  the  militia  system :  — 

1st.  Recent  experience  has  demonstrated  that  but  a  few  months 
of  disciphne  are  necessary  to  insure  bravery,  courage,  and  fortitude, 
in  the  field  of  conflict,  on  the  part  of  the  mihtia.  They  have  crowned 
themselves  with  immortal  honor,  and  have  added  unfading  luster 
to  the  national  reputation. 

2d.  An  agricultural,  manufacturing,  and  commercial  community 
like  ours  will  be  unlikely  to  become  inyolved  in  long  and  expensive 
wars  at  home  or  abroad.  But  few  instances  in  our  history  have 
occurred  when  it  has  been  necessary  to  call  forth  the  mihtia  of  the 
several  States  in  any  considerable  numbers  and  for  any  great  length 
of  time.  Our  history,  thus  far,  has  proved  that  it  is  more  economi- 
cal to  keep  up  an  extensive  militia  organization  of  the  States  than 
to  keep  a  large  standing  army  in  the  field. 

3d.  The  President  of  the  United  States  is  commander-in-chief 
of  the  army  and  navy  at  all  times,  and  of  the  militia  of  the  several 
States  when  called  into  actual  service  of  the  government.  He  can 
not  call  forth  the  militia  except  under  provisions  made  by  Congress. 
Various  acts  of  Congress  have  been  passed,  at  diflferent  times, 
defining  the  emergencies  under  which  the  President  may  call  forth 
the  militia.  He  is  to  be  sole  judge  of  the  necessity  to  call  them 
forth.  At  the  close  of  the  late  Rebellion,  1865,  over  one  million 
of  the  mihtia  were  mustered  out  of  service  within  a  few  months, 
and  returned  to  the  industrial  pursuits  of  the  country. 

§  24.  It  is  believed  that  the  standing  armies  of  the  world  are 

now  larger  than  they  have  been  at  any  time  since  the  great  wars  of 

the  first  Napoleon.     The  anny  of  the  United  States  now  numbers 

nearly  fifty-five  thousand  men.     The   annual  cost  of  our  army  at 

•  present  is  nearly  one  hundred  million  dollars. 

The  anny  of  France  has  been  fixed  at  seven  hundred  and  fifty 
thousand  men  in  the  "active"  army,  and  five  hundred  and  fifty 
thousand  in  the  "  passive  ;  "  the  latter  being  called  *'  the  National 
Ghiard  Mobile."      Total,  thirteen  hundred  thousand  men  available 


188 


ANALYSIS  OF  CIVIL  GOVERNMENT.      [Part  II 


for  war.     A  contingent  of  one  hundred  thousiind  men  is  annually 
available  to  recruit  the  army. 

The  British  army  numbers  about  two  hundred  thousand  men, 
the  larger  part  of  which  is  at  home  ;  Ireland  alone  absorbing  about 
twenty-five  thousand  troops. 

The  Prussian  army  numbers  about  six  hundred  thousand  men. 

The  Italian  army  now  numbers  about  two  hundred  and  fifteen 
thousand,  and  is  one  of  the  finest  in  the  world. 

The  Austrian  army  numbers  about  seven  hundred  thousand  men. 
Its  cavalry  is  very  superior.  The  government  raises  its  own  horses, 
and  thus  secures  the  very  best  animals  for  service. 
-  The  Russian  army  numbers  about  eight  hundred  thousand  men  ; 
and  it  could  readily  be  increased,  in  case  of  war,  to  twelve  hundred 
thousand.  It  is  spread  all  over  the  empire,  from  the  Baltic  to  the 
Caucasus. 

The  Spanish  army  is  small,  not  exceeding  eighty  thousand  men  ; 
but  it  is  generally  in  excellent  condition,  and  supplied  with  the  best 
arms  to  be  procured. 

The  number  of  men  maintained  in  the  standing  armies  of  civilized 
nations  is  not  less  than  thirty-six  hundred  thousand.  All  these  vast 
numbers  are  snatched  away  from  the  pursuits  of  useful  industry, 
and  condemned  to  idleness  and  a  vicious  life ;  while  the  laboring 
masses  are  tasked  for  their  support,  and  for  the  costly  armaments 
they  require. 

ART.  VIII.  —  JUDICIARY. 

1.  To  constitute  tribuyials  inferior  to  the  Supreme  Court.  34, 

2.  To  determine  by  law  where  the  trials  for  crimes  shall  be 

held  which  are  not  committed  within  any  State.    @8. 

3.  3Iay  make  exceptions  and  regulations  in  cases  over  which 

the   Constitution  gives  the    Supreme    Court   appellate 

jurisdiction.  ^7. 

§  1.   The  Constitution  estabUshes  a  Supreme  Court ;  but  it  is  left 

with  Congress  to  organize  that  tribunal.      The  power   is  vested  in 

Congress  to  establish  tribunals  inferior  to  the  Supreme  Court ;  and,  as 

these  tribunals  constitute  a  part  of  the  national  judiciary,  they  will 


Part  II.]  POWERS  OF  CONGKESS.  189 

be  considered  in  the  chapter  relating  to  that  department  of  the  gov- 
ernment. This  article  is  inserted  here  for  the  purpose  merely  of 
classifying  the  subject  of  it  among  the  powers  of  Congress.  Theso 
inferior  tribunals  consist  of  circuit  and  district  courts. 

§  2.  Congress  has  the  power  to  determine  by  law  where  the  trials 
of  crimes  shall  be  held  which  are  not  committed  within  any  State. 
Although  crimes  committed  within  any  State  are  to  be  tried  in  tho 
State  where  they  are  committed,  yet  they  may  be  committed  on  the 
hijrh  seas,  or  within  the  limits  of  unorjiranized  Territories.  This 
clause  of  the  Constitution  gives  Congress  the  power  to  provide  for 
such  cases. 

§  3.  The  appellate  jurisdiction  of  the  Supreme  Court  is  subject 
to  such  exceptions  and  regulations  as  Congress  shall,  from  time  to 
time,  establish  by  enactment.  This  power  will  be  noticed  in  treat- 
ing of  the  judiciary. 

ART.  IX.  — NATURALIZATION. 

To  establish  a  uniform  rule  of  naturalization.   29, 

§  1.  Naturalization  is  that  legal  process  by  which  an  alien  or  a 
foreigner  becomes  a  citizen  of  the  United  States.  Congress  has  ex- 
clusive control  over  this  subject.  Under  the  Confederation,  this 
power  did  not  belong  to  Congress,  but  to  the  States.  In  the  Con- 
stitutional Convention,  there  was  no  opposition  to  giving  it  to  Con- 
gress. Distributed  among  the  several  States,  under  the  Confedera- 
tion, it  had  been  a  source  of  great  embarrassment,  on  account  of  the 
different  conditions  for  naturalization  required  by  tlie  different 
States. 

§  2.  An  alien  is  one  who  is  born  in  a  foreign  country.  This 
definition  does  not  apply  to  children  born  in  foreign  countries,  whose 
parents  are  citizens  of  the  United  States,  and  are  temporarily 
absent  on  the  public  business  of  the  United  States.  Such  children 
are  considered  as  native-born. 

§  3.  Under  the  Confederation,  New  York  might  require  ten 
years'  residence  of  an  alien  before  he  could  become  naturalized ; 
Pennsylvania  might  require  six  years,  New  Jersey  three,  and  Con- 


19(>  AKAIiYSIS   OF  CIVIL  GOVERNMENT.     [Paet  11. 

necticut  one.  Yet  if  a  foreigner  became  naturalized  in  Connecti- 
cut, where  but  one  year's  residence  was  required,  he  might  remove 
to  New  York  in  a  year  or  two  after  naturalization,  and  claim  all  the 
privileges  of  citizenship  in  the  latter  State.  For  the  free  inhabit- 
ants of  each  State  were  ''entitled  to  all  the  privileges  and  immunities 
of  free  citizens  in  the  several  States."  Thus  a  citizen  of  any  State 
was  a  citizen  of  any  other  State  in  which  he  might  become  a  resi- 
dent. 

§  4.  Congress,  having  the  whole  control  of  this  subject  under  the 
Constitution,  passed  a  law  in  1790  requiring  two  years'  residence 
before  a  foreigner  could  become  naturalized.  In  1795,  the  act 
was  amended,  requiring  five  years'  residence.  In  1798,  the  period 
was  extended  to  fourteen  years  ;  but  it  was  reduced  in  1802  to  five 
years ;  since  which  there  has  been  no  alteration  as  to  time,  except 
with  regard  to  soldiers.  A  soldier,  having  served  one  year  in  the 
Union  army,  and  having  obtained  an  honorable  discharge,  may 
become  a  citizen  of  the  United  States  on  making  oath  to  these  facts, 
and  taking  the  oath  of  allegiance  to  our  government. 

§  5.  At  any  time  after  a  foreigner  has  become  a  resident  in  this 
country,  he  may  make  his  declaration  of  intention  on  oath,  before  a 
court  of  competent  jurisdiction,  to  become  a  citizen  of  the  United 
States.  The  following  is  a  declaration  of  intention  now  on  file  in 
the  clerk's  office  for  the  county  of  Monroe,  New  York :  — 

State  of  New  York,  7 
Monroe  County,     | 

I,  Patrick  Flannigan,  of  the  city  of  Rochester,  Monroe  County, 
New  York,  do  declare,  on  oath,  that  it  is  my  hond-Jide  intention  to 
become  a  citizen  of  the  United  States,  and  to  renounce  for  ever  all 
allegiance  and  fidelity  to  every  foreign  prince,  potentate,  state,  and 
sovereignty  whatever,  and  particularly  to  the  sovereign  of  Great 
Britain,  of  whom  I  am  a  subject. 

Patrick  Flannigan. 
Subscribed  and  sworn  to  in  open  court 
this  thirtieth  day  of  June,  1867. 

Charles  J.  Powers,  Clerk, 

I    Seal  of 
the  Court 


1*ART  IT.]  POWERS  OF  CONGRESS.     -  191 

§  6.  Five  years  must  have  elapsed  after  a  foreigner  becomes  a 
resident,  and  two  years  after  declaration  of  intention  as  above, 
before  he  can  become  a  citizen.  The  declaration  of  intention  may 
be  made  any  time  within  three  years,  or  longer,  after  becoming  a 
resident ;  but  at  least  two  years  must  intervene  after  declaration  of 
intention  before  taking  the  oath  of  allegiance,  which  is  the  last  step 
in  order  to  become  a  citizen. 

§  7.  The  oath  of  allegiance  must  be  preceded  by  the  oath  of 
other  witnesses  to  the  five  years'  residence  and  good  character  of  the 
applicant.  These  witnesses  must  be  citizens  of  the  United  States, 
and  swear  that  they  are  well  acquainted  with  the  said  applicant 
(Patrick  Flannigan);  that  he  has  resided  in  the  United  States  for 
five  years  last  past,  and  for  the  last  year  in  the  State  of  New  York; 
and  that,  during  that  time,  he  has  behaved  as  a  man  of  good  moral 
character,  attached  to  the  principles  of  the  Constitution  of  the 
United  States. 

§  8.  The  oath  of  allegiance  will  then  be  administered  to  Patrick 
Flannigan,  and  will  read  substantially  thus  :  — 

"  I,  Patrick  Flannigan,  do  solemnly  swear  that  I  will  support  the 
Constitution  of  the  United  States ;  and  that  I  hereby  renounce  and 
abjure  all  allegiance  and  fidelity  to  every  foreign  prince,  potentate, 
state,  and  sovereignty  whatever,  and  particularly  to  the  Queen  of 
England,  of  whom  I  am  a  subject.     So  help  me,  God. 

"  Patrick  Flannigan. 
"  Sworn  to  in  open  court  this  sixth  day  of  July,  1869,  before  me, 

"  Charles  J.  Powers,  Clerk  of  Monroe  County.'' 

§  9.  When  a  foreigner  becomes  naturalized,  his  children  under 
twenty-one  years  of  age,  if  residents  of  the  United  States  at  the 
time,  become  citizens  without  further  formality.  If  a  foreigner 
makes  his  declaration  of  intention  to  become  a  citizen  of  the  United 
States,  and  dies  before  the  time  to  become  naturalized,  his  wife  and 
children  may  become  citizens  at  that  time  on  taking  the  necessary 
oath. 

§  10.  By  act  of  Congress  passed  in  1855,  "persons  heretofore 
bom,  or  hereafter  to  be  born,  out  of  the  limits  and  jurisdiction  of 
the  United  States,  whose  fathers  were  or  shall  be  at  the  time  of  their 


1^  ANALYSIS  OF   CIVIL  GOVERNMENT.     [Part  II. 

birth  citizens  of  the  United  States,  shall  be  deemed  and  considered, 
and  are  hereby  declared  to  be,  citizens  of  the  United  States ;  pro- 
vided, however,  that  the  rights  of  citizenship  shall  not  descend  to 
persons  whose  fathers  never  resided  in  the  United  States. 

"Also  any  woman  who  might  lawfully  be  naturalized  under  the 
existing  laws,  married,  or  who  shall  be  married,  to  a  citizen  of  the 
United  States,  shall  be  deemed  and  taken  to  be  a  citizen." 

AET.  X.  — TERRITORY. 

1.  Government. —  To  make  all  needful  rules  and  regulations 

respecting  the  territory  of  the  United  States.    76. 

2.  Seat  of  Government.  —  To  exercise  exclusive  legislation  in 

all  cases  whatsoever  over  such  district  {not  exceeding 
ten  miles  square)  as  may.,  hy  cession  of  particular 
States  and  the  acceptance  of  Congress,  become  the  seat 
of  government  of  the  United  States.   4S. 

3.  Public  Works.  —  Also  over  all  places  purchased  hy  consent 

of  the  legislatures  of  the  States  in  v^hich  the  same  shall 
he^  for  the  erection.,  Xst.,  of  forts  ;  ^d.,  magazines ;  3c?, 
arsenals;  ^th,  dock-yards;  and.,  bth,  other  needful 
buildings.    42. 

4.  Alienation. —  To  dispose  of  the  territory  of  the   United 

States.    76. 

5.  New  States.  —  May  admit  new  States  into  the  Union.   75, 

1.  — GOVERNMENT. 

§  1.  Ownership  of  territory  by  any  government  implies  the  right 
to  govern  it ;  and  the  right  to  govern  imphes  the  right  to  make  all 
needful  rules  and  regulations  for  that  purpose.  But  the  authors  of 
the  Constitution  saw  fit  to  incorporate  into  that  instrument  this  power 
to  govern,  which  is  but  in  affirmance  of  well-known  principles  of  law 
in  such  cases. 

§  2.  It  seems  to  be  admitted  by  all  political  parties  at  the  present 
day  that  the  United  States  possess  the  right  to  acquire  territory. 
The  government  has  acted  on  this  right  from  the  beginning.  By 
the  liberality  of  the  States  owning  it,  the  General  Government  had 
acquired  that  immense  region  known  as  the  North-westfern  Territory 


Part  II.]  POWERS  OF  CONGRESS.  193 

before  the  adoption  of  the  Constitution.  Since  the  adoption,  our 
territory  has  been  greatly  extended  in  the "  acquisition  of  Louisiana, 
Florida,  California,  and  the  Russian  possessions  in  America. 

§  3.  It  is  the  duty  of  Congress  to  make  the  necessary  rules  and 
adopt  the  necessary  measures  to  govern  this  vast  territory,  until  such 
time  as,  by  the  increase  of  its  population,  it  shall  be  divided  and 
erected  into  independent  States,  and  admitted  into  the  Union. 
More  than  a  dozen  States  have  already  been  formed  from  this  ac- 
quired territory,  and  have  been  adopted  as  members  of  the  National 
Union. 

2. -SEAT  OF  GOVERITMENT. 

§  4.  Speaking  of  the  powers  of  Congress  over  the  seat  of  gov- 
ernment. Judge  Story  says,  "  A  moment's  consideration  will  establish 
the  importance  and  necessity  of  this  power.  Without  it,  the  National 
Government  would  have  no  adequate  means  to  enforce  its  authority 
in  the  place  in  which  its  public  functionaries  should  be  convened. 
They  might  be  insulted  and  their  proceedings  might  be  interrupted 
with  impunity.  And,  if  the  State  in  which  it  were  situated 
should  array  itself  in  hostility  to  the  proceedings  of  the  National 
Government,  the  latter  might  be  driven  to  seek  another  asylum,  or 
be  compelled  to  a  humiliating  submission  to  the  State  authorities. 

§5.  "Nor  let  it  be  thought  that  the  evil  is  wholly  imaginary. 
It  actually  occurred  to  the  Continental  Congress  at  the  very  close 
of  the  Revolution,  who  were  compelled  to  quit  Philadelphia,  and 
adjourn  to  Princeton,  in  order  to  escape  from  the  violence  of  some 
insolent  mutineers  of  the  Continental  army. 

§  6.  "  It  is  under  this  clause  that  the  cession  of  the  present  Dis- 
trict of  Columbia  was  made  by  the  States  of  Maryland  and  Virginia 
to  the  National  Government ;  and  the  present  seat  of  the  National 
Government  was  established  at  the  city  of  Washington  in  1800. 
That  convenient  spot  was  selected  by  the  exalted  patriot  whose  name 
it  bears  for  this  very  purpose." 

The  District  of  Columbia  was  a  tract  ten  miles  square.  That 
part  of  it  obtained  from  Virginia  was  re-ceded  to  that  State  in  1846  : 
60  that  now  the  District  is  confined  to  the  Maryland  side  of  the 
Potomac. 

13 


194  ANALYSIS   OF  CIVIL  GOVERNMENT.     [Pakt  II. 

§  7.  Before  the  year  1800,  the  seat  of  government  was  not  per- 
manently fixed  at  any  place  ;  and,  being  moved  as  it  was  from  place 
to  place,  the  public  suffered  great  inconvenience.  It  had  been 
temporarily  established  at  the  following  places,  at  the  foUowino" 
dates :  — 

Philadelphia,  Sept.  5,  1774. 

Philadelphia,  May  10,.  1775. 

Baltimore,  Dec.  20,  1776. 

Philadelphia,  March  4,  1777. 

Lancaster,  Penn.,  Sept.  27,  1777. 

York,  Penn.,  Sept.  30,  1777. 

Philadelphia,  July  2,  1778. 

Princeton,  June  30,  1783. 

Annapolis,  Md.,  Nov.  26,  1783. 

Trenton,  N.  J.,  Nov.  1,  1784. 

New  York,  Jan.  11,  1785. 

3. -PUBLIC  WORKS. 

§  8.  If  the  National  Government  needs  a  site  for  the  erection  of 
a  fort,  magazine,  arsenal,  dock-yard,  or  any  other  building,  there 
are  two  steps  necessary  to  procure  it :  first,  the  consent  of  Con- 
gress ;  and,  second,  the  consent  of  the  legislature  of  the  State  in 
which  the  proposed  site  is.  When  the  cession  is  made,  the  govern- 
ment comes  into  full  possession ;  and  now  Congi'ess  may  exercise 
over  such  place  exclusive  legislation. 

§  9.  Unless  the  State  of  which  such  purchase  is  made  reserves 
the  right,  no  legal  State  authority  can  be  exercised  in  such  places, 
even  to  the  serving  of  writs  of  any  kind,  civil  or  criminal.  All 
judicial  jurisdiction  in  such  cases  is  national.  If  crimes  are  com- 
mitted in  such  places,  they  must  be  tried  in  the  United-States  courts. 
Judge  Story  says,  however,  that  the  States  have  generally  reserved 
in  such  cessions  the  right  to  serve  all  State  processes,  civil  and  crimi- 
nal, upon  persons  found  therein. 

§  10.  The  object  of  such  reservations  when  they  are  made  is, 
that  these  places  shall  not  become  retreats  and  asylums  for  fugitives 
from  justice  who  may  be  guilty  of  crimes  against  State  authority. 


Part  II.]  POWERS  OF  CONGRESS.  195 

Almost  every  State  has  more  or  less  of  these  places  within  its  limits 
subject  to  the  jarisdiction  of  national  authority. 

4.  — ALIENATION. 

§  11.  The  power  to  dispose  of  the  territory  belonging  to  the 
United  States  has  been  discussed  in  another  place,  and  therefore 
need  not  be  repeated  here.     (See  Art.  I.  of  Chap  IV.,  Part  II.) 

5. -NEW   STATES. 

§  12.  By  reference  to  the  Articles  of  Confeaeration,  it  will  be 
seen  that  Canada  was  to  be  admitted  into  the  Union  by  "  acceding  to 
the  Confederation,  and  joining  in  the  measures  of  the  United  States; " 
but  no  other  (British)  Colony  was  to  be  admitted  unless  such  ad- 
mission were  agreed  to  by  nine  States,  Nothing  is  to  be  found  in 
those  articles  providing  for  the  admission  of  new  States  into  the 
Union.  This  was  an  important  omission,  as  the  events  of  our 
history  since  the  adoption  of  the  Constitution  have  proved. 

§  13.  At  the  close  of  the  Revolutionary  War,  there  were  immense 
tracts  of  vacant  territory  lying  within  the  chartered  limits  of  several 
of  the  States.  These  States,  with  this  extensive  domain,  constituted, 
in  part,  the  area  of  the  Confederation.  This  vacant  territory,  as  well 
as  the  territory  of  the  States  proper,  had  been  wrested  from  British 
jurisdiction  by  the  common  efforts,  sacrifices,  treasure,  and  blood  of 
the  inhabitants  of  all  the  States  engaged  in  the  struggle. 

§  14.  Several  of  the  States  were  reluctant  to  ratify  the  Articles 
of  Confederation,  and  refused  to  come  into  the  Union  unless  this 
vacant  territory  should  become  the  common  property  of  the  National 
Government.  Congress  earnestly  urged  the  States  holding  this  ter- 
ritory to  surrender  their  claims  for  the  common  benefit  of  all  the 
States. 

§  15.  On  the  10th  of  October,  1780,  the  Congress  of  the  Con- 
federation 

"  Resolved,  That  the  unappropriated  lands  that  may  be  ceded  or 
relinquished  to  the  United  States  by  any  particular  States,  pursuant 
to  a  recommendation  of  Congress  made  Gth  September  of  the  same 
year,  shall  be  disposed  of  for  the  common  benefit  of  the  United 


\ 


196  ANALYSIS  OF  CIVIL  GOVEENMENT.     [Part  II. 

States,  and  be  settled  and  formed  into  distinct  republican  States 
to  become  members  of  the  Federal  Union." 

§  16.  This  resolution  also  suggested  that  the  necessary  and  rea- 
sonable expenses  should  be  re-imbursed  which  any  State  had  incurred 
since  the  commencement  of  the  Revolutionary  War  in  subduing  any 
British  posts,  or  in  maintaining  forts  or  garrisons  within  the  country 
and  for  its  defense,  or  in  acquiring  any  part  of  the  territory  that 
might  be  ceded  or  relinquished  to  the  United  States. 

§  17.  In  pursuance  of  these  recommendations  of  Congi-ess,  New 
York,  Virginia,  Massachusetts,  Connecticut,  South  Carolina,  North 
Carolina,  and  Georgia  made  the  desired  surrender  of  their  respec- 
•tive  claims  to  the  aforesaid  vacant  lands.  New  York  took  the  lead 
in  the  noble  and  generous  sacrifice,  March  1,  1781 ;  and  was  fol- 
lowed by  the  other  States,  one  after  another,  at  various  dates,  ending 
with  Georgia,  April  24,  1802. 

§  18.  Since  that  time,  our  territory  has  been  vastly  extended  by 
the  purchase  of  the  Louisiana  tract  (1803)  of  France ;  by  the  pur- 
chase of  Florida  of  Spain  (1819);  the  annexation  of  Texas  in  1845; 
the  addition  of  California,  by  treaty  with  Mexico,  in  1848  ;  and  by 
the  recent  purchase  of  nearly  five  hundred  thousand  square  miles  of 
Russian  territory  in  North  America. 

§  19.  It  was  foreseen  by  the  authors  of  the  Constitution,  that 
this  power  to  admit  new  States  into  the  Union  would  soon  become 
necessary ;  and  it  was  accordingly  vested  in  Congress.  Under  this 
provision,  the  following  States  have  already  been  admitted  at  the 
following  dates  respectively  :  — 


Vermont, 

March  4, 

1791. 

Kentucky, 

June  1, 

1792. 

Tennessee, 

June  1, 

1796. 

Ohio, 

April  30, 

1802. 

Louisiana, 

April  8, 

1812. 

Indiana, 

Dsc.  11, 

1816. 

Mississippi, 

Dec.  10, 

1817. 

Illinois, 

Dec.  23, 

1818. 

Alabama, 

Dec.  14, 

1819. 

PartII.]  powers  of  congress.  197 


Maine, 

March  15^ 

,  1820. 

Missouri, 

Dec.  14, 

1821. 

Arkansas, 

June  15, 

1836. 

Michigan, 

Jan.  26, 

1837. 

Wisconsin, 

May  29, 

1841. 

Florida, 

March  3, 

1845. 

Iowa, 

March  3, 

1845. 

Texas, 

Dec.  29, 

1845. 

California, 

Sept.  9, 

1850. 

Minnesota, 

Feb.  26, 

1857. 

Oregon, 

•  Feb.  14, 

1859, 

Kansas, 

Jan.  — , 

1861. 

West  Virginia, 

June  20, 

1863. 

Nevada, 

Oct.  31, 

1864. 

Nebraska, 

, 

1867, 

ART.  XI.  — STATES. 

1.  Elections. 

May  alter  the  times,  places,  and  manner  of  holding  elec- 
tions of  senators  and  representatives  prescribed  in  the 
several  States  by  the  legislatures  thereof,  except  as  to 
the  places  of  choosing  senators.    15. 

2.  Electors  of  President  and  Vice-President. 

May  determine^ 

\st.   The  times  when  tJie  States  shall  choose  their  elec- 
tors of  President  and  Vice-President  of  the 
United  States. 
2d.  Also  the  day  on  which  the  electors  shall  give 
their  votes ;    which   day  shall   be   the  same 
^  throughout  the  United  States.  S5, 

3.  Acts,  Records,  Judicial  Proceedings. 

May  by  general  law  provide  the  manner  in  which  the 
acts,  records,  and  judicial  proceedings  of  the  several 
States  shall  be  2>roved,  and  the  effect  thereof.   71, 

4.  Imposts  and  Duties. 

May  revise  and  control  any  State  laws  in  reference  to  lay- 
ing any  imposts  or  duties  on  imports  or  exports.   5^. 


198  ANALYSIS   OF   CIVIL   GOVERNMENT.     [Part  II. 

1,- ELECTIONS. 

§  1.  It  is  left  with  the  States  to  fix  the  times,  places,  and  manner 
of  holding  their  elections  of  senators  and  representatives  in  Con- 
gress ;  but,  should  they  neglect  to  do  this,  Congress  has  jurisdiction 
over  the  whole  subject,  except  as  to  the  places  of  choosing  senators. 
Each  State  can  consult  its  own  local  convenience  with  regard  to 
these  elections ;  but  it  has  no  right  to  wholly  neglect  making  the 
necessary  provisions  for  holding  them. 

§  2.  Every  government  has  the  inherent  right  to  provide  for  the 
perpetuity  of  its  own  existence.  The  Constitution  could  hardly  contain 
a  general  election  law  applicable  ta  the  conveniences  of  all  tho  States 
alike.  The  power  here  given  to  Congress  is  simply  discretionary, 
not  mandatory ;  and  such  a  power  must  be  vested  somewhere.  Judge 
Story  says,  "  There  were  three  ways  in  which  it  (this  power)  could 
be  reasonably  organized.  It  might  be  lodged  either  wholly  in  the 
National  Legislature,  or  wholly  in  the  State  Legislatures ;  or  pri- 
marily in  the  latter,  and  ultimately  in  the  former."  The  last  mode 
was  adopted  by  the  Convention. 

§  3.  It  is  possible  that  a  State  might  utterly  refuse  to  provide 
for  the  election  of  senators  and  representatives.  One  State  under 
the  Confederation  actually  did  withdraw  its  members  from  Congress 
to  prevent  the  passage  of  important  measures.  What  Rhode  Island 
did  then,  another  State  might  be  disposed  to  repeat  in  substance,  even 
if  powerless  to  do  it  in  the  sama  manner.  A  State  can  not  now  with- 
draw its  members ;  but  it  might  attempt  to  prevent  their  election, 
and,  but  for  the  provision  we  are  considering,  might  succeed  in  em- 
barrassing legislation. 

§  4.  The  places  of  choosing  senators  are  left  unalterably  with 
the  legislatures  of  the  several  States.  As  the  senators  are  chosen 
by  the  legislatures  of  the  several  States,  it  is  presumable  that  they 
will  hardly  be  likely  to  take  any  course  to  put  themselves  to  unne- 
cessary inconvenience.  Congress  has  provided  for  the  election  of 
members  of  the  House  of  Representatives  by  Congressional  districts ; 
and  more  recently  they  have  exercised  supervision  to  a  limited  ex- 
tent over  the  manner  of  electing  senators. 


PabtII.]  powebs  of  congbess.  199 

2.— ELECTORS  or  PRESIDENT  AND  VICE-PRESIDENT. 

§  5.  The  States  have  the  choosing  of  electors  of  President  and 
Vice-President ;  but  Congress  has  the  power  to  determine  the  time 
when  the  electors  shall  be  chosen.  In  1TC2,  March  1,  Congress 
passed  an  act  requu-ing  that  the  time  for  electing  electors  should  be 
within  thirty-four  days  preceding  the  first  Wednesday  in  December 
of  each  year,  when  electors  were  to  be  appointed.  Thus  the  States 
had  a  margin  of  over  thirty  days  within  which  to  hold  their  election 
of  electors. 

§  G.  But  Jan.  23,  1845,  Congress  passed  an  act  specifying 
the  day  on  which  electors  should  be  elected  throughout  the  United 
States.  That  day  is  the  Tuesday  next  after  the  first  INIonday  in  the 
month  of  November  of  the  year  in  which  they  are  to  be  chosen. 

§  7.  The  time  when  the  electors  are  to  give  their  votes  for  Presi- 
dent and  Vice-President  shall  be  the  same  throughout  the  United 
States.  By  act  of  Congress,  that  day  is  the  fii-st  Wednesday  in 
December  after  their  election.  The  place  is  left  for  the  several 
State  legislatures  to  designate ;  and  they  generally  direct  it  to  be 
done  at  the  State  capitol. 

§  8.  The  pro\asions  of  Congress  fixing  a  day  for  the  election  of 
electors  which  shall  be  the  same  througliout  the  United  States,  as 
well  as  the  day  on  which  the  electors  shall  give  their  votes,  has  a 
tendency  to  prevent  "  bargaining  and  selling,"  and  the  formation  of 
political  combinations  to  defeat  the  will  of  the  people. 

S.  -  ACTS,  RECORDS,   JUDICIAL  PROCEEDINGS. 

§  9.  When  a  judgment  is  rendered  by  any  State  court  in  proper 
form  from  which  no  appeal  has  been  taken  to  any  higher  court  within 
the  time  allowed  for  appeals,  that  judgment  is  conclusive  ever  after, 
between  the  parties  to  it,  as  to  the  matters  in  controversy.  That 
judgment  will  be  received  in  evidence  when  offered  in  any  other 
court  within  the  limits  of  the  State  within  which  it  was  rendered. 

§  10.  But,  before  the  ratification  of  the  Articles  of  Confederation, 
there  was  no  uniformity  of  practice  in  regard  to  this  subject  as  he- 
tween  the  different  Colonies,  or  as  between  the  different  States.  In 
the  Articles  of  Confederation,  there  was  a  clause  on  the  subject  of  the 


200  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 

credit  to  be  given  by  one  State  to  the  acts,  records,  &c.,  of  other 
States  ;  but  no  power  was  given  to  Congi'ess  to  direct  as  to  the 
method  of  proof  in  such  cases,  and  the  effect  thereof. 

§  11.  The  power  to  provide  for  the  manner  of  proving  the  acts, 
records,  and  judicial  proceedings  of  the  several  States  is  vested  in 
Congress,  though  the  faith  and  credit  to  be  given  between  State  and 
State  is  mandatory  in  the  Constitution.  Under  this  power,  Congiess 
has  passed  laws  defining  the  manner  in  which  they  shall  be  authen- 
ticated, and  the  cfiect  to  be  given  to  their  authenticity. 

§  12.  A  judgment  obtained  in  a  court  of  competent  jmisdiction  in 
one  State  is  vaHd  in  every  other  State  in  the  Union.  As  between 
nations  foreign  to  each  other,  there  is  no  uniform  rule  on  the  sub- 
ject ;  or,  at  most,  a  foreign  judgment  is  only  what  the  law  calls 
primd-facie  evidence  in  the  case,  not  conclusive.  In  other  words, 
the  matter  involved  is  re-examinable. 

§  13.  But,  while  the  Constitution  in  another  place  requires  that 
full  faith  and  credit  shall  be  given  in  this  matter  as  between  the 
States,  endless  embarrassment  would  ensue  but  for  the  exercise  of 
this  legislative  authority  by  Congress  over  the  State  courts. 

§  14.  By  act  of  May  26,  1790,  Congress  provided  the  mode  by 
which  records  and  judicial  proceedings  should  be  authenticated,  and 
declared  that  they  should  have  such  faith  given  to  them  in  every 
court  within  the  United  States  as  they  had  by  law  or  usage  in  the 
courts  of  the  State  from  whence  the  records  were  taken. 

4. -IMPOSTS  AND  DUTIES. 

§  15.  In  another  place,  it  will  be  seen  that  States  are  prohibited 
from  laying  any  imposts  or  duties  on  imports  or  exports  without  the 
consent  of  Congress,  except  what  may  be  necessary  for  the  execution 
of  their  inspection-laws.  If  States  should  attempt  to  lay  burden- 
some inspection-duties.  Congress  has  the  power  to  pass  acts  of  revis- 
ion, and,  in  case  it  becomes  necessary,  to  control  the  whole  subject. 

§  16.  The  subject  of  imposts  and  duties,  we  have  seen,  is  exclu- 
sively under  the  control  of  Congress ;  and,  should  a  State  attempt 
by  some  indirect  method  to  lay  duties  or  imposts,  Congress  has  the 
higher  right  to  control  and  revise  its  legislation.     The   State  of 


Part  II.]  POWERS  OF  CONGKESS.  201 

Maryland  passed  a  law  in  1821,  requiring  all  importers  of  goods, 
and  other  persons  selling  the  same  by  wholesale,  to  take  out  a 
license  costing  fifty  dollars.  This  was  regai'ded  as  an  indiiect  method 
of  laying  State  duties,  and  was  decided  by  the  Supreme  Court  of  the 
United  States  to  be  unconstitutional. 

ART.  XII.  — EXECUTIVE  VACANCY. 

1.  May  by  law  provide  for  the  case  of  removal,  death,  resigna- 

tion, or  inability  both  of  President  and  Vice-President. 

2.  May  by  law  declare  what  officer  shall  then  act  as  Presi- 

dent, until, 

1st.  Such  disability  be  removed ;  or, 
2d.   A  President  shall  be  elected.  57 • 

§  1.  There  was  a  strong  feeling  in  the  Constitutional  Convention, 
during  its  earlier  labors,  against  the  proposition  to  have  a  yico-Pre&- 
ident  of  the  United  States.  Until  this  proposition  found  favor 
among  the  members,  the  plan  was  that  the  President  of  the  Senate 
should  succeed  the  President  of  the  United  States  in  case  of  the 
death,  resignation,  or  inability  of  the  latter  to  perform  the  duties  of 
his  office.  But  the  Vice-Presidency  was  finally  accepted  as  a  feature 
of  the  plan. 

§  2.  Congress,  in  the  exercise  of  its  power  to  provide  for  the  va- 
cancy of  the  executive  chair  by  the  death,  removal,  or  inability  of 
both  the  President  and  Vice-President,  has  enacted  that  the  Presi- 
dent pro  tempore  of  the  Senate,  and,  in  case  there  shall  be  no 
President,  then  the  Speaker  of  the  House  of  Representatives,  shall 
act  as  President  until  the  disability  be  removed,  or  a  President  shall 
be  elected. 

ART.  XIII.  —  ArPOINTMENTS. 

May  by  law  vest  the  appointment  of  such  inferior  officers 
as  they  shall  think  proper, — 

1.  In  the  President  alone  ; 

2.  In  the  courts  of  law  ;  or, 

3.  Ill  the  heads  of  departments.   61. 

§  1.  This  power  of  vesting  appointments,  it  will  be  observed,  is 
restricted  to  inferior  officers.  But  what  are  inferior  offices  or  offi- 
cers 1     The  Constitution  does  not  discriminate.      Such  as  Congress 


202  ANALYSIS  or  CIVIL  GOVERNMENT.     [Part  II. 

sees  fit  to  style  inferior  officers  need  not  the  sanction  of  the  Execu- 
tive or  the  Senate  to  render  then-  appointments  vahd.  The  heads 
of  departments,  it  is  generally  conceded,  are  not  of  this  class. 
They  have  the  power  over  the  appointments  of  the  clerks  in  their 
respective  offices.  But  there  is  great  danger  that  a  corrupt  favor- 
itism may  be  the  result  of  the  abuse  of  this  power.  It  has  long 
been  used  to  punish  and  reward  political  opinion.  To  obtain  an 
office,  a  man's  political  views  must  coincide  with  the  appointing 
power.     This  is  a  flagrant  abuse  of  official  authority, 

§  2.  The  Postmaster-General  wields  a  patronage,  the  estimate  of 
which  is  most  fearful  if  dispensed  as  a  political  bribe  throughout 
the  country.  The  question  is  too  seldom  asked,  whether  the  appli- 
cant for  a  village  post-office  is  honest,  capable,  and  faithful  to  the 
Constitution ;  but,  on  the  contrary,  his  fitness  for  office,  in  thou- 
sands of  instances,  is  tested  by  his  fidelity  to  party.  So  extensive 
has  been  the  practice  of  distributing  official  favors  to  political  parti- 
sans during  the  last  thirty  years,  that,  with  rare  exceptions,  a  man's 
political  sentiments  could  be  inferred  by  the  office  he  held.  Public 
offices  ought  not  to  be  distributed  as  rewards  for  poHtical  opinions. 

ART.  XIV.  — CONSTITUTIONAL  AMENDMENTS. 

1.  Shall  propose  amendments  to  the   Constitution  whenever 

two-thirds  of  both  houses  of  Congress  shall  deem  it 
necessary  ;  or, 

2.  On  application  of  the  legislatures  of  two-thirds  of  the  sev- 

eral States^  Congress  shall  call  a  convention  for  propos- 
ing amendmeyits. 

3.  JL/ay  prescribe  either  of  two  modes  of  ratifying  the  pro- 

posed amendments. 

\st.  By  State  conventions ;  or, 
2d.  By  the  State  legislatures.  T8. 
§  1.  Congress  has  no  power  to  alter  or  amend  the  Constitution; 
but  they  can  take  the  initiatory  steps.  They  can  submit  proposi- 
tions to  the  States  for  this  purpose,  whenever,  in  the  estimation  of 
two-thirds  of  the  members  of  both  houses,  amendments  become  ne- 
cessary. 

§  2.  No  human  government  can  be  perfect ;  and  the  Constitution 


Part  II.]  POWERS  OF  CONGRESS.  203 

of  the  United  States  was  but  an  experiment,  which,  in  its  original 
form,  might  not  prove  successful.  It  was  wise,  therefore,  to  make 
provisions  in  the  instrument  itself  for  its  amendment.  A  Constitu- 
tion suited  to  the  necessities  of  this  generation  may  not  le  adapted  to 
the  wants  of  the  next.  But  it  was  well  to  guard  against  the  hasty- 
adoption  of  amendments,  without  allowing  sufficient  experience  under 
the  original  instrument  to  test  the  utility  of  its  provisions.  The 
powers  of  Congress  over  this  subject  are  quite  limited.  The  prop- 
osition for  amendments  may  originate  with  Congress,  or  with  the 
legislatures  of  two-thirds  of  the  several  States.  When  it  originates 
with  the  States,  instead  of  amendments  being  proposed  by  Congress, 
that  body  calls  a  convention  to  propose  them. 

§  3.  Congress  has  the  power  of  directing  whether  the  proposed 
amendments  (whatever  way  they  originate)  shall  be  ratified  by 
State  conventions  or  by  State  legislatures.  Thus  far,  there  have 
been  adopted  fourteen  Articles  of  Amendments.  These  have  all  ori- 
ginated with  Congress,  and  have  been  ratified  by  State  legislatures. 
There  is  one  clause  of  the  Constitution  unamendable  except  by  the 
consent  of  the  State  interested,  which  reads  thus  :  "  No  State,  with- 
out its  consent,  shall  be  deprived  of  its  equal  suffrage  in  the  Sen- 
ate." This  is  for  the  protection  of  the  smaller  States  in  the  national 
councils. 

As  Congress  takes  no  part  in  the  ratification  of  proposed  amend- 
ments, that  subject  belongs  in  another  place.  (See  Chap.  IX., 
Art.  I.,  Part  11.) 

ART.  XV.  — SLAVERY. 

1.  Shall  have  power  to  enforce  tJie  abolition  of  slavery  by  ap- 

2)ropriate  legislati07t.   98. 

2.  While  the  foreign  slave-trade  was  laxoful  {until  18C8),  Con- 

gress had  the  power  to  impose  a  tax  or  duty^  not  exceed- 
ing ten  dollar Sy  07i  each  slave  imported.  44. 

l.-ITS  ABOLITION. 

§  1.  The  Constitution  as  it  came  from  the  hands  of  its  authors  in 
1787,  and  as  it  was  ratified  by  the  people  of  the  several  States,  rec- 
ognized slavery  as  a  State  institution.     True,  the  word  "  slave,"  or 


204  ANALYSIS  OF   CIVIL  GOVERNMENT.     [Part  II. 

'*  slavery, ' '  is  not  in  the  instrument.  These  words  were  carefully  and 
intentionally  omitted.  In  the  thirteenth  Article  of  Amendments,  the 
word  "slavery  "  appears  for  the  first  time  in  the  Constitution;  and 
that  article  abolishes  the  institution  throughout  the  United  States 
and  their  territories. 

§  2.  Section  second  of  the  thirteenth  Article  of  Amendments 
gives  Congress  legislative  authority  over  the  subject.  As  four  or 
five  millions  of  men,  women,  and  children,  were  suddenly  transferred 
from  slavery  to  freedom,  it  was  presumed  that  national  legislation 
would  become  necessary  to  protect  them  in  their  new  condition. 
Congress  has  abeady  exercised  this  power  in  the  passage  of  several 
statutes  on  the  subject.  This  matter  will  receive  further  attention 
in  considering  State  prohibitions. 

2.  — FOREIGN  SLAVE-TRADE. 

§  3.  The  provision  of  the  Constitution  relating  to  this  subject 
rejfds  as  follows :  — 

"  The  m'gration  or  importation  of  such  persons  as  any  of  the 
States  now  existing  shall  think  proper  to  admit  shall  not  be  pro- 
hibited by  the  Congress  prior  to  the  year  one  thousand  eight  hun- 
dred and  eight ;  but  a  tax  or  duty  may  be  imposed  on  such  impor- 
tation, not  exceeding  ten  dollars  for  each  person." 

At  the  time  of  the  formation  of  the  Constitution,  all  the  States 
held  slaves,  except  one  ;  and  the  foreign  slave-trade  was  lawful 
among  all  nations  of  the  world. 

§  4.  At  the  time  of  the  adoption  of  the  Constitution,  the  general 
opinion  prevailed  that  slavery  would  gradually  diminish  until  it  would 
become  extinct  in  all  the  States.  This  opinion  was  based  on  the 
supposition  that  free  labor  would  ultimately  be  found  to  be  more 
profitable  than  slave  labor,  and  that  slaves  would  soon  become  val- 
ueless. At  that  time,  it  must  be  remembered,  cotton  was  not  the 
leading  article  of  commerce  which  it  has  become  during  the  present 
century. 

§  5.  At  that  time,  the  processes  of  separating  the  seed  from  the 
cotton,  spinning  the  cotton  into  yarn,  and  weaving  the  yarn  into 
cloth,  were  so  slow  and  clumsy  compared  with  the  methods  of  doing 


Part  II.]  POWEBS   OF  CONGEESS.  205 

the  same  things  at  the  present  day,  that  this  article  did  not  promise 
to  become  a  leading  fabric  with  which  to  clothe  the  world.  But  lit- 
tle cotton  was  worn,  and  that  httle  was  expensive.  A  vast  expendi- 
ture of  labor  was  required  to  convert  it  from  the  raw  material  into 
cloth. 

§  6.  But,  near  the  close  of  the  last  century,  three  inventions,  each 
contributing  to  the  same  end,  produced  a  wonderful  revolution  in  the 
mechanical  processes  of  converting  cotton  into  cloLh.  The  cotton-gin 
by  EU  Whitney  of  Connecticut,  the  spinning-jenny  by  Sir  Richard 
Arkwriffht,  and  the  power-loom  by  Edmund  Cartwright,  both  of 
England,  have  accompUshed  this  great  change.  By  means  of  these 
inventions,  the  products  of  human  industry  in  the  manufacture  of 
cotton  goods  have  been  multipUed  more  than  a  hundred-fold. 

§  7.  The  facilities  for  the  manufacture  of  cotton  goods  being  thus 
multiplied,  the  goods  were  greatly  reduced  in  price,  the  call  for  them 
in  the  markets  of  the  world  was  proportionally  extended,  and,  of 
course,  the  demand  for  the  raw  material  was  coiTCspondingly  in- 
creased. This  demand  increased  the  call  for  slave-labor,  this  call 
enhanced  the  price  of  slaves,  and  all  combined  advanced  the  slave- 
holding  interests  of  the  South.  Of  course,  all  these  changes  were 
unforeseen  by  the  authors  of  the  Constitution. 

§  8.  Congress  passed  a  law  prohibiting  the  foreign  slave-trade 
after  the  first  day  of  January,  1808  ;  imposing  mild  penalties  of  fine 
and  imprisonment  for  its  breach.  But  the  slave-trade  had  become 
profitable,  and  the  law  was  frequently  disobeyed.  In  1820,  Coa- 
gi-ess  passed  a  law  making  the  foreign  slave-trade  piracy,  punishable 
by  death.  In  1865,  slavery  was  abolished  by  a  Constitutional 
amendment,  as  has  been  stated. 

AET.  XVI.  — GENERAL  LAW-MAKING. 

Shallhave power  to  make  all  laws  which  shall  he  necessary 
and  proper  for  carrying  into  execution  the  powers  vested 
hy  the  Constitution^  — 

1.  In  the  government  of  the  United  States ;  or^ 

2.  In  any  department  thereof ;  or, 

3.  In  any  officer  thereof  4:3. 


iJ06  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II, 

§  1,  This  general  power  to  make  laws,  able  commentators  say, 
is  merely  a  specification  of  what  would  have  been  implied  even  had 
this  provision  of  the  Constitution  been  omitted  ;  for  the  granting 
of  any  power  implies  consent  on  the  part  of  the  grantor,  that  the 
necessary  means  may  be  adopted  to  render  that  power  effective. 
This  reasoning,  however,  does  not  prove  that  this  provision  is  mere 
surplusage ;  for  there  were  several  powers  granted  in  the  Articles  of 
Confederation,  which,  for  want  of  others  to  render  them  effective, 
were  but  a  mockery 

§  2  As  it  is  impossible  to  specify  in  the  fundamental  law  of  a 
nation  all  the  powers  which  at  some  time  it  may  be  indispensably 
necessary  to  exercise  for  the  common  good,  this  provision  seems  to 
be  among  the  wisest  to  be  found  in  the  Constitution.  Had  the 
attempt  been  made  to  enumerate  affirmatively  all  laws  necessary  and 
proper  which  Congress  might  pass,  it  must  have  resulted  in  failure 
As  Judge  Story  says,  it  would  have  rendered  necessary  "a  com- 
plete digest  of  all  laws  on  every  subject  to  which  the  Constitution 
relates.  It  must  have  embraced  all  future  as  well  as  all  present 
exigencies,  and  been  accommodated  to  all  times  and  all  occasions, 
and  all  changes  of  situation  and  character." 

ART.  XVII.— MEETING. 

1.  Shall  assemble  at  least  once  in  every  year ;  which  meeting 

shall  be  on  the  first  Monday  in  December^  unless, 

2.  They  shall  appoint  a  different  day.   10. 

§  1.  In  England,  the  sovereign  has  the  sole  power  to  convene  and 
dissolve  the  two  houses  of  Parliament :  he  can  call  them  to- 
gether at  any  time  he  sees  fit.  So  the  President  of  the  United  States 
can  convene  either  or  both  houses  of  Congress  on  extraordinary  occa- 
sions. But,  if  it  should  so  happen  that  the  President  was  essentially 
at  variance  with  Congress,  had  he  the  power  to  prevent  their  meet- 
ing, he  would  be  likely  to  exercise  that  power,  and  perhaps  to  the 
detriment  of  the  nation.  A  bad  President  might  prefer  to  have 
no  Congress  during  his  administration.  In  such  case,  there  would 
be  a  practical  demonstration  of  the  necessity  of  this  provision. 

§  2.  Again  :  it  seems  necessary  that  the  Constitution  should  con- 


Part  II.]  process  of  LAW-MAiaNG.  207 

tain  some  such  provision,  as,  otherwise,  the  two  houses  might  not 
agree  in  reference  to  the  time  of  assembling.  By  this  provision,  if 
they  can  not  agree  on  any  other  time,  they  must  meet  the  first  Mon- 
day of  December.  The  place  of  meeting  is  not  designated,  and 
probably  for  two  reasons  :  first,  the  seat  of  the  National  Govern- 
ment had  not  been  established  at  the  time  when  the  Constitution  was 
formed  ;  and,  second,  war  or  pestilence  might  at  times  interfere  with 
the  meeting  at  any  place  that  might  be  named  in  the  Constitution. 


CHAPTER  V. 
LAW-MAKING. 

AKTICLE  I.  —  PROCEEDINGS. 

A  bill  may  become  a  law  through  any  one  of  the  three  following 
processes :  — 

FIRST   PROCESS. 

1.  The  hill  shall  pass  both  houses  of  Congress.  '^ 

2.  It  shall  then  he  presented  to  the  President, 

3.  If  he  approve^  he  shall  sign  it.   24L 

SECOND   PROCESS. 

1.  The  hill  shall  pass  both  houses  of  Congress. 

2.  It  shall  then  he  presented  to  the  President. 

S.  If  he  disapprove  it,  he  shall  return  it,  with  his  ohjections^ 
to  that  house  in  which  it  originated. 

4.  That  house  shall  enter  ohjections  at  large  on  their  journal. 

5 .  Theg  shall  proceed  to  reconsider  it ;  and  if  after  such  recon- 

sideration, two-thirds  of  the  house  shall  agree  to  pass  it, 

6.  It  shall  he  sent,  with  the  ohjections,  to  the  other  house. 

7.  The  other  house  shall  reconsider  the  hill. 

8.  If  approved  hg  two-thirds  of  that  house,  it  shall  hecome  a  law. 

9.  The  votes  of  hoth  houses  shall  he  determined  hg  the  yeas 

and  nags  in  all  such  cases. 

10.  The  names  of  tJie  p>ersons  voting  for  and  against  the  hill 

shall  he  entered  on  the  journal  of  each  house  respec- 
tively.   24:. 


208 


ANALYSIS   OF  CIVIL   GOVERNMENT.     [Part  II. 


XniRD    PROCESS. 

1.  77^5  hill  shall  j^ass  both  houses  of  Congress, 

2.  It  shall  then  be  sent  to  the  President. 

3.  lie  ner/lects  to  approve  and  sign  it. 

4.  He  also  neglects  to  return  it  to  the  house  in  xohich  it  origi- 

nated. 

5.  It  becomes  a  law  at  the  end  of  ten  days  {Sundays  ex- 

cepted), unless   Congress,  by  adjournmetit  within   that 
time,  prevents  its  return.   34. 

§  1.  A  bill,  as  here  used,  is  the  draught  of  a  proposed  law.     It 
may  be  introduced  by  any  one  of  several  methods. 
1st.  It  may  be  introduced,  with  the   leave  of  the  house,  by  any 

member. 
2d.    It  may  bo  introduced  by  order  of  either  house  ; 
3d.    On  the  report  of  a  committee  ;  or, 

4th.  It  may  be  introduced   by  the  report  of  a  standing  or  select 
committee. 

§  2.  A  standing  committee  is  one  that  is  appointed  to  continue 
during  the  session  or  term  of  the  body  from  which  it  is  chosen.  To 
this  committee  is  usually  referred  all  that  class  of  subjects  which 
appropriately  comes  within  its  jurisdiction.  Its  name  is  usually 
Buggestive  of  its  business ;  as  the  Committee  on  Agiiculture,  Commit- 
tee on  Finance,  Committee  on  Military  Aflfairs,  Connnittee  of  Ways  and 
Means,  Judiciary  Committee  ;  and  so  on.  A  subject  maybe  present- 
ed, however,  that  does  not  appropriately  belong  to  any  standing 
committee.  Such  matter  is  usually  referred  to  a  committee  appoint- 
ed expressly  for  this  purpose,  which  is  called  a  select  committee.  All 
deliberative  and  legislative  bodies  have  their  committees  usually 
appointed  by  the  presiding  officer ;  though  they  are  not  always  so 
appointed  :  it  is  sometimes  done  by  the  assembly. 

§  3.  A  bill  in  Congress  must  receive  three  several  readings  before 
it  is  put  upon  its  final  passage.  No  bill  can  be  read  more  than  oneo 
on  the  same  day  without  the  special  permission  of  the  house.  Tho 
vote  is  taken  on  its  third  reading.  The  arguments  for  and  against 
the  bill,  if  any,  are  m.ade  before  its  third  reading,  or  between  its 
third  reading  and  the  taking  of  the  vote.  If  the  bill  passes,  it  is 
signed  by  the  presiding  officer,  and  sent  to  the  other  house.     If  it 


Part  II.]  PROCESS  OF  LAW-MAKING.  209 

passes  the  other  house,  the  presidmg  officer  of  that  house  signs  it ; 
after  which,  it  is  sent  to  the  President  of  the  United  States  for  hia 
approval  or  disapproval. 

§  4.  At  any  time  during  the  pendency  of  a  hill,  amendments  to 
it  may  be  proposed,  and  passed  hy  either  house.  Either  house  may 
concur  in  or  reject  the  amendments  made  to  a  bill  by  the  other,  or 
may  reject  the  bill  altogether.  But,  at  any  stage  of  the  proceed- 
ings, amendments  being  attached  to  a  bill  in  one  house  must  bo  sent 
to  the  other  for  approval  or  disapproval.  The  President  has  no 
power  to  attach  amendments. 

§  5.  The  first  process  of  law-making,  as  described  in  the  Analysis, 
is  the  simplest ;  only  requiring  that  a  bill  shall  pass  both  houses  of 
Congress,  and  receive  the  signature  of  the  President.  In  such 
cases,  only  a  numerical  majority  of  each  house  is  necessary.  The 
bill  may  pass  either  or  both  houses  without  the  formality  of  taking 
the  yeas  and  nays,  unless  they  shall  be  called  for  by  one-fifth  of  the 
members  present. 

§  6.  The  second  process  of  law-making  is  the  one  in  which  the 
President's  veto,  as  it  is  commonly  called,  is  interposed.  To  become 
a  law  in  opposition  to  the  President's  objections,  more  formality  is 
rec[uired  than  in  the  first  process  of  law-making;  and,  instead  of 
merely  a  numerical  majority  of  each  house,  it  requires  a  two-third 
majority,  after  his  veto,  to  pass  the  bill.  The  voting  must  be  done  in 
the  second  process  by  yeas  and  nays,  even  though  one-fifth  of  the 
members  do  not  call  for  them  ;  and  the  names  of  persons  voting 
for  and  against  the  bill  must  be  recorded.  These  requirements  are 
not  matters  of  legislative  discretion,  but  of  Constitutional  provision, 
and  therefore  imperative. 

§  7.  The  word  veto  is  borrowed  from  the  Latin  language,  and 
signifies,  I  forbid.  The  President's  negative  on  the  bills  passed 
by  Congress  is  called  his  veto.  As  we  have  already  seen,  his 
veto  is  qualified,  not  absolute.  The  sovereign  of  Great  Britain  has 
an  absolute  neprative  on  the  bills  of  Parliament,  thoudi  he  has  not 
exorcised  it  for  nearly  two  hundred  years. 

§  8.  There  was  an  earnest  efibrt  in  the  Constitutional  Convention, 
on  the  part  of  some  of  the  leading  members,  to  vest  in  the  Executive 

14 


210  ANALYSIS   OF  CIVIL  GOVERNMENT.     [Part  II. 

an  unqualified  negative,  or  veto,  on  all  bills  passed  by  Congress. 
Some  of  the  most  illustrious  names. in  that  illustrious  body  gave  up 
this  proposition  with  great  reluctance.  But  for  Dr.  Franklin's  op- 
position, perhaps  it  would  have  been  carried.  He  said  hie  had  had 
some  experience  of  this  check  on  the  Executive  in  the  legislature  of 
Pennsylvania.  The  negative  of  the  governor  was  constantly  made 
use  of  to  extort  money.  No  good  law  whatever  could  be  passed 
without  a  private  bargain  with  him. 

§  9.  An  increase  of  his  salary,  or  some  donation,  was  always  made 
a  condition ;  till  at  last  it  became  the  regular  practice  to  have  orders 
in  his  favor,  on  the  treasury,  presented  along  with  the  bills  to  be 
signed,  so  that  he  might  actually  receive  the  former  before  he  should 
sign  the  latter.  It  was  held  by  the  opponents  of  the  absolute  nega- 
tive to  be  dangerous  in  the  extreme  to  allow  one  man  to  check  the 
will  of  the  whole.  No  one  man  could  be  found  so  far  above  all  the 
rest  in  wisdom  as  to  render  it  safe  to  clothe  him  with  such  august 
power.  The  Constitutional  provision  as  it  now  stands  passed  the 
Convention  by  the  vote  of  eight  States  against  two,  —  afterwards 
unanimously. 

§  10.  This  executive  power,  on  the  other  hand,  may  operate  as  a 
salutary  check  on  hasty  legislation.  Factious,  precipitate,  and  even 
unconstitutional  legislation,  arising  from  temporary  excitement  and 
party  zeal,  might  disgrace  the  halls  of  Congress.  The  Executive,  not 
having  participated  in  the  rivalry  of  debate,  and  being  quietly 
retired  from  the  scenes  of  poHtical  strife,  may  be  presumed  to  bo 
better  qualified  to  pronounce  correct  judgment  than  those  who  were 
active  in  the  contest. 

§  11.  The  third  process  of  law-making  differs  from  the  first  and 
second  only  with  regard  to  the  action,  or  rather  inaction,  of  the 
President.  He  simply  neglects  to  sign  the  bill  within  ten  days, 
Sundays  excepted,  after  receiving  it.  In  such  case,  it  becomes  a 
law  if  Congress  remains  in  session  during  that  period;  but,  if 
Congress  adjourns  before  the  expiration  of  that  time,  the  law  is 
defeated.  This  last  provision  is  for  the  purpose  of  taking  it  out  of 
the  power  of  Congress  to  give  validity  to  their  acts  merely  by 
adjournment. 


Part  IL]  prohibitions  on  the  u.  s.  211 

art.  ir.  —orders,  resolutions,  and  votes. 

Every  order^  resolution^  or  vote^  to  lohich  the  concurrence 
of  the  Senate  and  House  of  Representatives  may  he  neces- 
sary, except  on  a  question  of  adjournment., 

1 .  Shall  he  presented  to  the  President  of  the  United  States. 

2.  It  shall  he  approved  hy  him  hefore  the   same  shall 

take  effect ;  or.,  heing  disapproved  hy  him., 

3.  It  shall  he  passed  hy  the  two  houses  of  Congress,  hy 

two-thirds  of  each,  according  to  the  rules  and  limi- 
tations prescrihed  in  case  of  a  hill.  S5. 
Were  it  not  for  this  provision,  Congress  might  exert  their  power 
in  the  form  of  orders,  resolutions,  or  votes ;  thus  preventing  the 
President  from  interposing  his  veto.  They  could  thus  substantially 
legislate  in  these  forms  without  the  sanction  of  the  Executive,  and 
without  the  necessity  of  a  two-third  majority  of  each  house.  As  it 
now  stands,  the  President  has  the  same  power  of  disapproval  of  an 
order,  resolution,  or  vote,  that  he  has  to  negative  an  act  passed  in 
the  ordinary  forms  of  legislation ;  and,  if  he  disapproves  them  by 
the  interposition  of  his  veto,  they  must  be  re-passed  by  the  yeas  and 
nays,  and  by  the  same  formalities  as  required  in  the  second  process 
for  the  passage  of  a  bill. 


CHAPTER  VI. 

PROHIBITIONS   ON   THE  UNITED   STATES. 

ARTICLE  I.  — HABEAS  CORPUS. 

The  privilege  of  the  writ  of  haheas  corpus  shall  not  he  sus- 
pended unless  when  the  puhlic  safety  may  require  it. 

1.  In  cases  of  rehellion. 

2.  In  cases  of  invasion.  45. 

§  1.  In  legal  parlance,  a  writ  is  an  instrument  in  writing,  under 
seal,  issued  by  authority  of  the  king,  president,  governor,  judge,  or 
other  magistrate,  directed  to  a  public  officer  or  a  private  individual, 
commanding  him  to  do  or  not  to  do  some  particular  thing  therein 
specified,  over  which  the  officer  issuing  it  has  jurisdiction. 


212  ANALYSIS   OF  CIVIL  GOVERNMENT.     [Part  IT. 

§  2.  It  sometimes  happens  in  the  administration  of  kw  and  gov- 
ernment that  a  person  is  wrongfully  imprisoned,  or  restrained  cf  his 
liberty,  before  trial  and  final  sentence  by  a  court  of  competent  juris- 
diction. Sometimes,  also,  persons  may  be  wrongfully  restrained  of 
their  liberty  without  even  so  much  as  the  forms  of  law ;  as  by  im- 
properly holding  a  child  in  custody,  or  locking  a  person  in  a  room. 
More  usually,  however,  it  is  done  by  a  perversion  of  the  forms  of 
law. 

§  3.  The  remedy  in  such  cases  is  by  a  writ  of  habeas  corpus,  as 
it  is  called ;  taking  its  name  from  the  command  in  the  writ  to  pro- 
duce the  body  of  some  person  named  therein,  who,  it  is  alleged,  is 
illegally  restrained  of  his  liberty.  Habeas  corpus  signifies,  ''have 
you  the  hody.^^  The  proceedings  in  such  cases  are  substantially  in 
this  manner :  — 

For  instance,  William  Jackson  is  imprisoned  in  iMonroe-county 
jail.  New  York. 

1st.  He,  or  some  person  in  his  behalf,  makes  affidavit  that  he  is 
wrongfully  restrained  of  his  liberty  in  the  jail  aforesaid  by 
some  person,  say  John  Brown,  the  jailer. 
2d.  This  affilavit  is  made  before  a  court  of  competent  jurisdiction, 

and  a  writ  of  habeas  corpus  is  asked  of  the  court. 
3d.  The  writ  is  issued,  of    course,   commanding  John    Brown  to 
bring  the  body  of  William  Jackson  before  the  court  on  a  di.y 
mentioned  in  the  writ,   and  to  make  return  on  the  writ  why 
he,  Brown,  holds  Jackson  in  custody  or  under  restraint. 
4th.  The  writ  is  served  by  some   competent  officer  by  reading  it  to 

Brown,  and  giving  him  a  certified  copy  if  requested. 
5th.  On  the  day  named  in  the  writ  for  its  return,  Brown  appears  in 
court  with  Jackson,  and  Brown  shows  the  court  by  docu- 
mentary or  other  legal  proofs  his  right  to  the  custody  of 
Jackson. 
6th.  If  the  reasons  for  holding  the  prisoner  are  deemed  legally  in- 
sufficient by  the  court,  the  prisoner  is  set  at  liberty  :  if,  on 
the  other  hand,  they  are  regarded  as  valid,  the  prisoner  is 
remanded  back  to  prison. 
7th.  This  proceeding  under  a  writ  of  habeas  corpus  does  not  do- 


Part  II.]         prohibitions  on  the  u.  s. 


213 


tcrmine   the  guilt  or  innocence  of  the   piisoner,   hut   simply 
whether  he  is  rightfully  or  wrongfully  restrained  of  his  liberty 
at  the  time  of  inquiry.     Excessive  bail  may  have  been  required 
of  him,  and  he  may  have  been  unable  to  procure  it,  though 
he  might  have  offered  a  reasonable  sum.     The  papers  on  which 
he  was  committed  may  be  void  for  want  of  proper  form,  or 
they  may  be  defective  in  substance.     A  man  may  be  guilty, 
yet  illegally  imprisoned. 
§  4.  Every  American  citizen,  if  restrained  of  his  liberty  before  con- 
viction, has  the  right  to  avail  himself  of  the  advantages  of  proceed- 
ing by  habeas  corpus  to  ascertain  the  legality  of  his  imprisonment. 
The  only  exceptions  to  this  rule  are,  1st,  when  the  privilege  of 
the  writ  is  suspended  by  proper  authority  in  a  time  of  insurrection  or 
invasion ;  2d,  when  a  person  has  been  committed  for  contempt  of 
court ;  and,  3d,  when  the  imprisonment  is  by  order  of  a  court  hav- 
ing  exclusive  jurisdiction  of  the   subject-matter  involved   in   the 
case. 

§  5.  In  cases  of  rebellion  or  invasion,  it  may  be  necessary  to 
temporarily  suspend  the  privilege  of  this  writ.  Rebellion  here 
means  an  uprising  of  the  citizens  of  a  country  against  its  authority. 
The  suspension  of  the  privilege  of  this  writ  was  vested  by  Congress 
in  the  President  of  the  United  States  during  the  Great  Rebellion 
from  1861  to  1865.  Invasion,  as  used  in  the  Constitution,  means 
attack  on  the  United  States  by  a  foreign  power. 

ART.  II.  — DIRECT  TAXES. 

JVo  capitation  or  other  direct  tax  shall  be  laid  unless  in 
2?roportion  to  the  census.  ^,  47. 

Note.  —  Tlie  subject  of  taxation  is  discussed  quite  fully  in  treating  of 
the  powers  of  Congress,  and  need  not  be  repeated  here- 

ART.  III.— EXPORT  DUTIES. 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  any 
State,  48. 

The  intention  of  this  prohibition  is  to  prevent  taxing  the  interests 
of  any  State  to  its  detriment,  and  giving  undue  advantages  to  others. 


214  ANALYSIS  OF  CIVIL  GOViilRNMENT.       [Part  II. 

The  productions  of  some  of  the  States  are  very  different  from  those 
of  others  ;  and,  were  export  duties  allowed  to  be  enforced,  the  bur- 
dens of  taxation  would  be  very  unequal.  The  staple  production  of 
some  States  is  cotton ;  of  others,  rice ;  of  others,  tobacco ;  of 
others,  sugar  ;  and  of  others,  articles  of  manufacture  whicli  are  used 
chiefly  for  home  consumption.  Some  Spates  are  interested  in  the 
coast  fisheries,  others  in  whaling,  and  still  others  in  navigation  and 
commerce.  It  would  be  impossible  to  so  adjust  export  duties,  were 
they  allowed,  as  to  distribute  the  burdens  equally. 

ART.  IV.  — INTER-STATE  COMMERCE. 

1.  2^0  preference  shall  be  gioen  by  ariy  regulation  of  com- 

merce or  revenue  to  the  ports  of  one  State  over  another. 

2.  iVbr  shall  vessels  bound  to  or  from  one  State  be  obliged  to 

enter^  clear^  or  pay  duties  in  another.  48. 
Although  Congress  is  invested  with  power  to  regulate  commerce 
among  the  States,  yet  that  power  is  coupled  with  these  prohibitions : 
No  preference  shall  be  given  to  the  ports  of  one  State  over  another ; 
nor  shall  entrance  or  clearance  fees,  or  the  payment  of  duties,  be 
required  in  an  intermediate  State  while  vessels  are  passing  from 
one  State  to  another.  A  vessel  bound  to  Philadelphia  from  Liver- 
pool, in  passing  Boston  or  New  York,  can  not  be  compelled  to  enter, 
clear,  or  pay  duties  in  either  of  the  last  two  ports  named.  The 
duties  must  be  paid  in  Philadelphia,  the  port  to  which  the  vessel  is 
bound. 

ART.  v.— PUBLIC  MONEY. 

1.  N'o  money  shall  be  drawn  from  the  treasury  but  in  con- 

sequence of  appropriations  made  by  law. 

2.  A  regular '  statement  and  account  of  the  receipts  and  ex- 

penditures  of  all  public  w,oney  shall  be  published  from 
time  to  time.   4:0. 

3.  N'o  appropriation  of  money  to  raise  and  support  armies 

shall  be  for  a  longer  term  than  two  years.    37, 
§  1.  The  Congress  of  the  United  States  is  made  not  only  the 
guardian  of  the  public  interests  generally,  but  of  the  public  treasury 
in  particular.     Even  when  it  is  settled  by  judicial  decision  that  a 


5artII.]  PBOHIBITIONS   ON  THE   U.   S.  215 

Epecific  sum  is  due  to  a  creditor,  the  money  can  not  be  drawn  there- 
for until  Congress  shall  have  passed  upon  the  vaUdity  of  the  claim, 
and  ordered  an  appropriation.  The  whole  mattter  is  subject  to  the 
critical  review  and  decision  of  Congress.  The  object  of  this  provis- 
ion is  to  secure  strict  faithfulness  in  the  public  expenditures.  Neither 
the  executive,  nor  the  judiciary,  nor  the  heads  of  departments,  nor 
the  officers  of  the  army  or  navy,  nor  even  members  of  Congress 
themselves,  can  draw  a  dollar  of  the  public  money  except  by  appro- 
priations made  by  law. 

§  2.  The  requirement  that  a  regular  account  and  statement  of  the 
receipts  and  expenditures  of  the  public  money  shall  be  published 
from  .time  to  time  puts  a  most  salutary  check  on  the  possible  pro- 
fusion and  extravagance  of  the  National  Legislature.  The  people 
have  the  right  to  know  how,  and  for  what  purposes,  their  money  is 
expended.  The  heads  of  the  departments  must  make  an  annual 
exhibit  of  their  transactions  respectively. 

§  3.  The  fear  that  the  army  might  possibly  become  a  power  too 
formidable  to  be  consistent  with  the  rights  and  liberties  of  the 
people  led  to  this  Constitutional  limitation  of  army  appropriations. 
It  is  necessary  to  raise  and  support  armies  even  in  time  of  peace ; 
but  not  a  dollar  can  be  appropriated  for  this  purpose  without  the 
sanction  of  Congress.  And,  lest  Congress  may  be  extravagant  in 
this  direction,  they  are  forbidden  to  make  appropriations  extending 
beyond  the  period  of  two  years.  A  Congress  lasts  for  but  two 
years ;  and,  should  they  be  profuse  in  their  appropriations  of  army 
money,  the  people  will  be  likely  to  correct  the  error  in  their  election 
of  the  succeeding  Congress. 

ART.  VI. -NOBILITY. 

No  title  of  nobility  shall  be  granted  by  the  United  States.  50. 
The  government  instituted  in  this  country  at  the  close  of  the 
Revolutionary  War,  and  which  took  definite  shape  in  the  Constitu- 
tion of  the  United  States,  was  intended  to  be  characterized  for 
republican  simplicity.  The  theory  of  our  institutions  is,  all  citizens 
are  equal  before  the  law.  Orders  of  nobility  are  forbidden,  in 
accordance  with  this  theory.     Alexander  Hamilton  says,  **  This  may 


216  ANALYSIS   OF  CIVIL  GOVEENMENT.     [Part  It. 

truly  be  denominated  the  corner-stone  of  republican  government ;  for, 
so  long  as  titles  of  nobility  are  excluded,  there  can  never  be  serious 
danger  that  the  government  will  be  any  other  than  that  of  the 
people." 

ART.  VII.  — PENALTIES. 

1 .  iV^  hill  of  attainder  shall  he  passed. 

2.  N'o  ex  post  facto  laio  shall  he  jmssed.    46. 

3.  iVb  attainder  of  treason  shall  icorh, 

\st.   Corruption  ofhlood;  nor^ 

2d,   Forfeiture.,  except  during  the  life  of  the  person  at- 
tainted.   TO, 

§  1.  A  bill  of  attainder,  which  is  here  forbidden,  is  a  phrase 
borrowed  from  England,  It  is  a  special  act  of  the  legislative  body, 
inflicting  capital  punishment  on  a  person  for  high  crimes,  without 
having  been  first  convicted  before  a  judicial  tribunal.  A  person 
against  whom  such  an  act  is  passed  is  rendered  infamous,  and  is 
said  to  be  attainted,  or  stained  and  disgraced.  The  person  so 
attainted  forfeited  all  his  property,  real  and  personal,  to  the  Crown ; 
and,  by  operation  of  law,  his  blood  became  so  corrupted,  that  he 
could  neither  inherit  any  thing  from  his  ancestry,  nor  transmit  by 
hereditary  descent  to  his  heirs,  lineal  or  collateral. 

§  2.  An  act  of  the  legislature  convicting  a  person  of  any  crime, 
and  inflicting  any  punishment  short  of  death,  is  called  a  bill  of  pains 
and  penalties. 

The  Constitution  of  the  United  States  humanely  forbids  the  pas- 
sage of  any  bill  of  attainder. 

§  3.  An  ex  post  facto  law  is  one  that  is  retro-active,  or  which 
makes  an  act  criminal  which  was  not  so  when  committed.  It  has 
to  do  entirely  with  past  transactions,  and  of  a  criminal  nature.  The 
Supreme  Court  of  the  United  States  has  defined  an  ex  post  facto 
law  to  be  one  "which  renders  an  act  punishable  in  a  manner  in 
which  it  was  not  punishable  when  it  was  committed."  For  instance, 
from  1808  to  1820,  the  foreign  slave-trade  was  punishable  by  fine 
and  imprisonment.  After  1820,  it  was  punishable  by  death.  Had 
the  law  of  1820  punished  the  infractions  of  the  law  which  were 


Part  II.]  PEOHIBITIOKS  ON  THE  U.   S.  217 

committed  in  1818  with  death,  it  would  have  been  an  ex  post  facto 
law.  Laws  which  mitigate  the  puuisliment,  however,  are  not  regard- 
ed as  ex  post  facto;  for  they  are  in  favor  of  the  accused. 

§  4.  It  would  be  grossly  and  manifestly  unjust,  as  well  as  unpar- 
donably  cruel,  to  visit  a  crime  with  a  severer  penalty  than  was 
attached  to  it  at  the  time  of  its  commission ;  yet  laws  of  this  kind 
have  been  passed  in  some  of  the  European  States. 

§  5.  Treason  is  defined  by  the  Constitution,  and  its  punishment 
is  left  with  Congress  to  provide  for ;  but,  whatever  penalty  may  be 
attached  to  this  crime,  "  no  attainder  of  treason  shall  work  corrup- 
tion of  blood,  or  forfeiture,  except  during  the  life  of  the  person 
attainted."  The  crime  of  treason  in  England  —  that  country  from 
which  we  have  largely  borrowed  many  features  of  our  institutions  — 
was  punishable  by  death  in  the  most  horrid  and  revolting  forms. 
Not  only  so,  but  the  criminal's  blood  became  so  corrupted  by  fiction 
of  law,  that  all  powers  of  transmission  were  destroyed.  His  lineal 
and  collateral  kindred  were  compelled  to  suffer  for  his  offenses. 

§  6.  Our  Constitution  is  more  consonant  with  justice  and  human- 
ity, in  that  it  takes  it  out  of  the  power  of  Congress  to  punish  the 
innocent  for  the  crimes  of  the  guilty.  In  affirmance  of  this  Consti- 
tutional provision  forbidding  the  working  of  corruption  of  blood 
and  of  forfeiture,  except  during  the  life  of  the  person  attainted, 
Congress  has  by  law  declared  that  *'  no  conviction  or  judgment  for 
any  capital  or  other  offenses  shall  work  corruption  of  blood,  or  ifny 
forfeiture  of  estate." 

ART.  Vin.  —  FOREIGN  SLAVE-TRADE. 

The  importation  of  slaves  teas  not  to  be  prohibited, 

1.  J^}/  Congress,  prior  to  1808  (44)  ;  nor, 

2.  B\j  any  amendment  to  the  Constitution  prior  to  that 

time.  78. 
§  1.  Slavery  has  existed  in  every  age  of  the  world,  not  merely 
among  the  barbarous  and  savage  nations,  but  among  the  most 
refined,  civilized,  and  even  Christian  nations.  Captives  in  war  were 
sold  as  slaves,  and  were  regarded  and  treated  as  property.  This 
was  considered  as  a  favor  to  the  captive,  as  his  doom  was  slavery  or 
death.     If  the  captor  saved  the  captive's  life,  this  was  viewed  as  a 


218  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 

mercy  to  the  prisoner ;  for  which  he  was  to  be  reduced  to  perpetual 
servitude. 

§  2.  It  was  but  a  slight  remove  from  slavery  to  the  slave-trade. 
The  strong  and  powerful  soon  came  to  regard  it  as  their  right  to 
prey  on  the  weak  and  defenseless.  Among  the  ancients,  slavery 
finally  became  a  regular  branch  of  commerce.  Even  in  modern 
times  and  between  Christian  nations,  treaties  have  been  formed  for 
the  purpose  of  facilitating  commerce  in  this  species  of  property. 

§  3.  But,  towards  the' close  of  the  eighteenth  century,  the  slave- 
trade  began  to  excite  a  spirit  of  disapprobation ;  and  the  conviction 
fastened  itself  on  the  consciences  of  men,  that  this  traffic  in  human 
beings  was  repugnant  to  the  principles  of  Christian  obligation. 
Many  of  the  great  and  good  men  who  formed  the  Constitution  of 
the  United  States  shared  in  this  conviction.  In  that  Convention, 
the  foundation  was  laid  to  put  a  final  stop  to  this  outrage  on  the 
rights  of  humanity,  by  vesting  in  Congress  the  power  to  prohibit 
the  traffic  by  citizens  of  the  United  States  after  1807.  Although 
the  provision  is  expressed  in  negative  terms,  that  Congress  shall  not 
prohibit  the  practice  prior  to  that  time,  yet,  in  legal  parlance,  it  has 
all  the  efiect  of  an  affirmation  that  Congress  may  prohibit  it  after 
that  time. 

§  4.  Before  the  Declaration  of  Independence,  as  early  as  August, 
1774,  Virginia  and  North  Carolina  had  resolved  by  their  legislative 
assemblies  to  discontinue  the  importation  of  slaves.  The  first  Con- 
tinental Congress  passed  a  similar  resolution,  which  was  to  take  effect 
from  and  after  the  first  day  of  December  of  the  same  year. 

§  5.  After  the  adoption  of  the  Constitution,  March  22, 1794,  and 
May  10,  1800,  acts  were  passed  by  Congress  prohibiting  the  citizens 
of  the  United  States,  and  residents  within  them,  from  engaging  in 
the  transportation  of  slaves  from  the  United  States  to  any  foreign 
place  or  country,  or  from  one  foreign  place  or  country  to  another, 
for  the  purposes  of  traffic.  It  will  be  observed  that  these  acts  pro- 
hibited our  citizens  from  all  participation  in  the  foreign  slave-trade 
except  by  direct  importation  into  the  United  States.  Thus  Con- 
gress did  all  they  possibly  could  under  the  Constitution  at  that  time 
to  interdict  this  inhuman  traffic. 


Part  II.]  PROHIBITIONS  ON  THE  U.  S.  219 

§  6.  By  act  of  March  2, 1807,  Congress  prohibited,  under  severe 
penalties,  the  importation  of  slaves  into  the  United  States  from  and 
after  Jan.  1,  1808.  By  another  act,  passed  April  20,  1818,  the 
penalties  of  the  act  of  March  2,  1807,  were  increased  in  severity. 
Another  act  was  passed  March  3,  1819,  authorizing  national  armed 
vessels  to  be  sent  to  the  coast  of  Africa  to  prevent  citizens  or  resi- 
dents of  the  United  States  from  engaging  in  the  slave-trade.  This 
act  authorized  the  seizure  and  confiscation  of  any  vessels  found 
engaged  in  this  business.  Another  act  of  Congress,  passed  May 
15,  1820,  made  the  foreign  slave-trade  piracy,  and  punishable  by 
death. 

§  7.  The  reader  should  bear  in  mind  that  these  various  acts  of 
Congress  have  nothing  to  do  with  the  slave-trade  as  between  the 
several  States.  That  matter  was  regulated  by  the  States  themselves, 
and  some  of  them  passed  laws  on  this  subject.  They  did  this  be- 
fore the  final  abolition  of  slavery,  which  was  done  by  amendment 
of  the  Constitution  of  the  United  States  in  1865. 

§  8.  A  few  words  may  not  be  out  of  place  here  in  reference  to 
the  progress  of  other  nations  on  this  subject.  The  following  facts 
are  gathered  from  one  of  the  lectures  of  the  late  Chancellor  Kent 
on  the  law  of  nations.  The  first  British  statute  that  declares  the 
slave-trade  unlawful  was  passed  in  March,  1807.  This  was  a  great 
triumph  of  British  justice.  Afterwards,  by  act  of  Parliament, 
March  31,  1824,  the  slave-trade  was  declared  to  be  piracy. 

§  9.  Almost  every  maritime  nation  in  Europe  has  deliberately 
and  solemnly,  either  by  legislative  acts  or  by  treaties  and  other  for- 
mal engagements,  acknowledged  the  injustice  and  inhumanity  of  the 
trade,  and  pledged  itself  to  promote  its  abolition. 

§  10.  By  treaty  between  Great  Britain  and  France,  May  30, 
1814,  Louis  XVIII.  agreed  that  the  traffic  was  repugnant  to  the 
principles  of  natural  justice ;  and  he  engaged  to  add  his  efforts  at 
the  ensuing  Congress  to  induce  all  the  powers  of  Christendom  to 
decree  the  abolition  of  the  trade,  and  that,  on  the  part  of  the  French 
Government,  it  should  definitely  cease  in  the  course  of  five  years. 

§  11.  The  ministers  of  the  eight  principal  European  powers  who 
met  in  Congress  at  Vienna,  Feb.  8,  1815,  solemnly  declared,  in  the 


220  ANALYSIS  OF   CIVIL  GOVERNMENT.     [Part  II. 

race  of  Europe  and  the  world,  that  the  African  slave-trade  had 
been  regarded  by  just  and  enlightened  men  in  all  ages  as  repugnant 
to  the  principles  of  humanity  and  of  universal  morahty ;  that  the 
public  voice  in  all  civilized  countries  demanded  that  it  should  be 
suppressed ;  and  that  the  universal  abolition  of  it  was  conformable 
to  the  spirit  of  the  age  and  the  generous  principles  of  the  allied 
powers.  In  March,  1815,  the  Emperor  Napoleon  decreed  that  the 
slave-trade  should  be  abolished;  and  in  July  of  the  same  year, 
after  Napoleon's  downfall,  Louis  XVIII.  gave  directions  that  this 
odious  and  wicked  traffic  should  from  that  time  cease. 

§  12.  Denmark,  in  1792,  aboUshed  the  foreign  slave-trade,  and 
the  importation  of  slaves  into  her  colonies,  to  take  effect  in  1804. 
In  December,  1817,  Spain  prohibited  the  purchase  of  slaves  on  any 
part  of  the  coast  of  Africa  after  May  31,  1820.  In  January, 
1818,  Portugal  made  the  like  prohibition  as  to  the  purchase  of 
slaves  on  any  part  of  the  coast  of  Africa  north  of  the  equator. 

§  13.  In  1821,  there  was  not  a  flag  of  any  European  State 
which  could  legally  cover  this  traffic  to  the  north  of  the  equator ; 
and  yet,  in  1825,  the  importation  of  slaves  covertly  continued,  if  it 
was  not  openly  countenanced,  from  the  Rio  de  la  Plata  to  the  Ama- 
zon, and  through  the  whole  American  archipelago. 

§  14.  By  a  convention  between  England  and  Brazil  in  1826,  it 
was  made  piratical  for  the  subjects  of  Brazil  to  be  engaged  in  the 
slave-trade  after  the  year  1830.  In  the  treaty  of  Sept.  10,  1822, 
between  Great  Britain  and  the  Imaun  of  Muscat,  the  latter  agreed 
to  abolish  the  slave-trade  for  ever  in  his  dominions.  By  the  treaty 
of  the  23d  of  October,  1817,  between  Great  Britain  and  the 
King  of  Madagascar,  it  was  agreed  that  there  should  be  throughout 
the  dominions  of  the  latter  an  entire  cessation  of  the  sale  or  trans- 
fer of  slaves. 

§  15.  These  treaty  stipulations  have  not,  in  all  instances,  been 
faithfully  kept ;  nor  have  the  laws  passed  by  the  nations  of  Eu- 
rope and  America,  interdicting  this  traffic,  in  all  cases  been  suc- 
cessfully enforced  :  but  they  demonstrate  the  moral  sense  of  the 
nations  of  Christendom  on  the  subject. 

§  16.  The  provision  prohibiting  any  amendment  to  the  Constitu- 


Part  II.]  PROHIBITIONS   ON  THE  U.  S.  221 

tion  of  the  United  States,  which  should  forbid  the  importation  of 
slaves  before  1808,  was  one  of  the  results  of  a  compromise  of  this 
whole  matter  of  slavery.  It  was  feared  by  those  States  that  had  a 
large  commercial  interest  in  the  foreign  slave-trade,  that,  although 
Congi*ess  was  forbidden  to  intermeddle  with  the  subject  before  1808, 
some  amendment  to  the  Constitution  might  be  adopted  to  their  preju- 
dice unless  forbidden.  To  allay  that  fear,  this  prohibition  was  in- 
serted. 

ART.  IX.  — REPUDIATION. 

1.  Nothing  in  the  Constitution  shall  be  construed  so  as  to 

prejudice  any  claim^ 

\st.   Of  the  United  States  ;  nor^ 
Id.   Of  any  particular  States.  TO. 

2.  All  debts,  contracts,  and  engagements,  entered  into  before 

the  adoption  of  the    Co7istitution,  shall    be  as   valid 
against  the    United  States  under  the   Constitution  as 
under  the  Confederation.   79. 
§  1.  Although  these  two  clauses  refer  each  to  a  different  class  of 
subjects,  the  spirit  of  them  is  the  same.     They  are  intended  to  give 
an  assurance  to  the  people  who  are  asked  to  adopt  the  new  Consti- 
tution, that  good  faith  shall  be  observed  on  the  part  of  the  proposed 
new  government  in  all  matters  relating  to  the  vested  rights  of  States 
as  well  as  of  individuals,  and  also  of  the  United  States.     As  the 
government  was  about  to  undergo  a  great  change,  it  was  proper  to 
incorporate  these  provisions  into  the  fundamental  law  of  the  land, 
so  as  to  quiet  all  fear  that  repudiation  in  some  form  might  be  at- 
tempted. 

§  2.  The  first  of  these  provisions  relates  to  conflicting  claims  and 
unsettled  titles  to  some  parts  of  the  Western  territory.  That  sub- 
ject has  been  considered  in  Art.  X.,  Chap.  IV.,  Part  II.,  in  treat- 
ing of  the  powers  of  Congress  over  territory,  and  more  particularly 
with  reference  to  new  States,  and  their  admission  into  the  Union. 
The  intention  of  this  clause  is  to  give  assurance  that  the  adoption 
of  the  Constitution  shall  in  no  way  affect  the  validity  of  any  claims 
to  these  lands,  but  that  the  rights  of  parties  interested  shall  be  the 
same  as  they  were  under  the  Confederation. 


222  ANALYSIS   OF   CIVIL  GOVERNMENT.     [Part  II. 

§  3.  The  second  clause,  referring  to  debts,  contracts,  and  engage- 
ments made  by  the  United  States  under  the  Confederation,  is  in- 
tended to  give  assurance  to  the  creditors  of  the  proposed  new 
government  that  all  just  claims  against  the  Confederation  will  be 
recognized  and  liquidated  under  the  Constitution.  Judge  Story 
says  that  this  can  scarcely  be  deemed  more  than  a  solemn  declara- 
tion of  what  the  public  law  of  nations  recognizes  as  a  moral  obliga- 
tion, binding  on  all  nations,  notwithstanding  any  changes  in  their 
forms  of  government. 

AKT.  X.- FREEDOM. 

1.  Civil. 

1st.   Congress  shall  make  no  laio  abridging, 
1st.  The  freedom  of  speech  ;  nor, 
Id.    The  freedom  of  the  press  ;  nor, 
3d.    The  right  of  the  people  peaceably  to  assemble 
and  petition  the  government  for  a  redress 
of  grievances.   83  • 
2d.    The  right  of  the  people  to  keep  and  bear  arms  shall 
not  be  infringed.   84, 

2.  Religious. 

1^^.  No  religious  test  shall  ever  be  required  as  a  quali- 
fication  to  any  public  office  or  trust  under  the 
United  States.    81. 
2d.    Congress  shall  make  no  law, 

1st.  Hespecting  an  establishment  of  religion  ;  or, 
2d.  Prohibiting  the  free  exercise  thereof  83. 
§  1.  The  subjects  of  this  article  are,  freedom  of  speech,  free- 
dom of  the  press,  freedom  of  petition,  freedom  to  bear  arms,  and 
freedom  of  religious  sentiment.  These  are  among  the  most  sacred 
rights  of  human  society ;  and  Congress  is  strictly  forbidden  to  inter- 
fere with  them.  But  one  of  these  rights,  that  relating  to  a  religious 
test  as  a  qualification  to  office,  is  in  the  Constitution  as  at  first 
adopted.     The  others  are  in  the  amendments. 

§  2.  When  the   Constitution  was  before  the  people,  objections 
were  made  to  it  on  the  ground  that  it  did  not  contain  any  formal 


PakT  II.]  PROHIBITIONS   ON   THE   U.  S.  223 

and  distinctive  bill  of  rights.  Several  of  the  State  Conventions 
that  ratified  it  suggested  certain  auiendments  that  should  make  defi- 
nite acknowledgment  of  the  rights  of  the  people,  which  were  not 
specified  in  that  document.  These  proposed  amendments  were  com- 
mended to  the  attention  of  Congress,  and  most  of  them  have  since 
been  adopted.  Among  the  number  are  those  specified  in  this 
article. 

§  3.  Some  of  these  amendments  are  negative  in  form,  and  others 
affirmative.  Those  under  consideration  are  such  as  relate  to  the 
individual  rights  of  the  citizen,  civil  and  religious,  with  which  the 
government  is  forbidden  to  interfere.  Thej^  are  prohibitions  on 
the  United  States,  relating  to  personal  freedom. 

§  4.  Freedom  of  speech,  with  which  Congress  is  prohibited  from 
interfering,  does  not  mean  to  shield  the  citizen  from  legal  responsi- 
bility for  what  he  may  utter.  True,  a  man  may  say  what  he 
pleases ;  but  he  is  responsible  for  the  abme  of  this  liberty.  Ho  has 
no  rio-ht  to  slander  the  reputation  of  another.  Private  reputation  is 
a  subject  of  protection  by  the  laws  of  the  land.  You  may  slander 
a  man  in  various  ways,  notwithstanding  this  liberty  of  speech.  If 
you  charge  him  with  the  commission  of  a  crime  which  is  indictable, 
and  which  would  subject  him,  if  true,  to  infamous  punishment,  this 
is  slander.  Charging  a  man  with  a  breach  of  public  trust  is  slan- 
der. A  man  can  be  slandered  in  reference  to  his  trade  or  business 
by  declaring  him  to  be  incompetent,  or  by  saying  of  a  merchant,  for 
instance,  that  he  is  in  failing  circumstances,  when  he  is  not. 

§  5.  A  slander  becomes  a  libel  when  communicated  by  pictures 
or  signs,  or  writing,  printing,  or  painting.  It  is  then  calculated  to 
make  a  deeper  impression,  may  have  a  wider  circulation,  and  is  the 
more  aggravating,  because  it  may  be  presumed  to  be  done  with  full 
deliberation.  A  matter  may  be  libelous  if  written  or  printed, 
which,  legally,  would  not  be  slanderous  if  spoken.  Expressions 
which  hold  a  man  up  to  ridicule,  or  tend  to  degrade  him  in  the 
esteem  of  society,  are  libelous  if  written  or  printed.  Freedom  of 
the  press,  referred  to  in  this  article,  docs  not  exonerate  a  man  from 
legal  responsibility  when  he  abuses  that  freedom.  Libel  is  an 
indictable  offense,  and  may  be  punished  criminally.     Slander  is  not 


224  ANALYSIS   OF  CIVIL  GOVERNMENT.     [Pakt  II. 

indictable ;  but  the  author  of .  it  may  be  prosecuted  for  private 
damages  by  the  injured  party. 

§  6.  We  are  not  to  infer,  because  Congress  is  forbidden  to  inter- 
fere with  the  freedom  of  the  press,  that  the  press  can  do  no  wrong 
is  above  the  reach  of  law,  and  that  it  is  a  shield  for  every  abuse.  A 
writer  may  publish  what  he  pleases;  but,  if  he  pubHshes  that  which 
is  mischievous  or  illegal,  he  is  responsible  for  the  publication. 

§  7.  The  right  of  the  people  to  meet  in  peaceable  assemblage, 
and  to  petition  the  government  for  a  redress  of  grievances,  shall  not 
be  infringed.  In  despotic  governments,  the  people  are  sometimes 
de«ied  this  right,  under  the  pretense  that  the  assemblies  are  con- 
spiring against  the  welfare  of  the  government,  and  are  insurrection- 
ary and  riotous  in  their  aims.  It  is  the  inestimable  birthright  of 
every  American  citizen  to  petition  the  government  against  the  inflic- 
tion of  wrong  and  injustice. 

§  8.  The  right  of  the  people  to  keep  and  bear  arms,  with  which 
the  General  Government  is  herein  prohibited  from  interfering,  refers 
to  an  organization  of  the  militia  of  the  States.  There  have  been 
fears  expressed,  that  the  liberty  of  the  people  might  be  destroyed 
by  the  perverted  power  of  a  formidable  standing  army.  But  here 
is  the  check  to  any  such  danger.  The  militia,  that  might  be  called 
out  at  any  time  on  a  month's  notice,  would  outnumber,  twenty  to 
one,  any  standing  army  in  time  of  peace  that  will  ever  be  tolerated 
in  the  United  States.  Large  standing  armies  might  indeed  be  dan- 
gerous in  a  republican  government,  but  for  a  much  stronger  force 
distributed  throughout  the  ranks  of  the  people. 

§  9.  A  man's  religious  views  are  not  to  be  questioned  when 
appointed  or  elected  to  any  office  under  the  Government  of  the 
United  States.  This,  it  must  be  remembered,  does  not  apply  to 
State  officers.  In  some  of  the  States,  religious  tests  have  been 
applied  ;  but  the  Constitution  of  the  United  States  wisely  prohibits 
inquiry  into  the  religious  sentiments  of  any  man,  preliminary  to  his 
induction  into  office.  Were  it  otherwise,  the  political  would  soon  be 
merged  in  the  ecclesiastical  questions  of  the  day  ;  and,  ultimately. 
Church  and  State  might  become  united.  This  clause  prohibiting  re- 
ligious tests  for  office  is  th6  only  place  in  which  the  word  "religious " 


Part  II.]  RELATING  TO   OFFICERS.  225 

occurs  in  the  Constitution.  It  was  introduced  for  the  purpose  of 
eflfectually  silencing  all  attempts  at  an  alliance  of  Church  and  State 
in  the  National  Government. 

§  10.  In  the  very  first  Article  of  Amendments  to  the  Constitution, 
Congress  is  prohibited  from  making  any  law  respecting  an  establish- 
ment of  religion,  or  from  interfering  with  its  free  exercise.  Con- 
gress is  not  "allowed  in  any  way  to  intermeddle  with  the  religious 
institutions  of  the  country.  Our  fathers  felt  extreme  dread  of 
every  thing  in  the  line  of  religious  establishments  of  State.  They 
felt  that  religion  was  chiefly  a  matter  of  personal  concern  between 
the  individual  and  his  Maker.  They  were  familiar  with  the  history 
of  religious  intolerance  in  those  European  States  where  the  ecclesi- 
astical power  had  become  superior  to  the  civil.  They  were  well 
satisfied  that  the  interests  of  a  pure  and  holy  religion  demand  no 
alliance  with  the  civil  power.  Many  of  the  authors  of  the  Consti- 
tution were  themselves  men  of  strong  religious  convictions ;  so  that 
we  are  not  to  attribute  the  clauses  on  this  subject,  either  in  the  Con- 
stitution or  its  amendments,  as  arising  from  indifference  or  hostility 
to  the  interests  of  religion. 

§  11.  Judge  Story  says,  *'  It  was  also  obvious,  from  the  numer- 
ous and  powerful  sects  existing  in  the  United  States,  that  there 
would  be  perpetual  temptations  to  struggles  for  ascendency  in  the 
national  councils,  if  any  one  might  thereby  hope  to  found  a  perma- 
nent and  exclusive  national  establishment  of  its  own ;  and  religious 
persecutions  might  thus  be  introduced  to  an  extent  utterly  subver- 
sive of  the  true  interests  and  good  order  of  the  Republic.  The  most 
effectual  mode  of  suppressing  the  evil,  in  the  view  of  the  people, 
was  to  strike  down  the  temptation  to  its  introduction." 


CHAPTER  VIT. 

RELATING   TO   OFFICERS. 
ART.  I.  — INELIGIBILITY. 

1.  United-States  Officers.  —  N'o  person  holding  any  office 
of  trust  or  profit  under  the  United  States  shaU^ 

15 


226  ANALYSIS  OF   CIVIL  GOVERNMENT.     [Part  II. 

IsL  Be  appointed  an  elector  of  President  and  Vice- 
President,  54  5  nor^ 
2d.   Me  a  member  of  either  house  of  Congress  during 
his  continuaiice  in  office.   22* 
2.  Congressmen.  —  JVb  senator  or  representative  shall, 

1st.  Be  appointed  an  elector  of  President  and  Vice- 

President,  54 ;  wor, 
2d.   During  the  time  for  which  he  was  elected,  he  ap- 
pointed to  any  civil  office  under  the  United  States^ 
\st.    Which  shall  have  heeyi    created  during 

such  time  ;  nor, 
2d,    The  emoluments  of  which  have  been  in- 
creased during  such  time.   22, 
§  1.  The  object  of  tbe  foregoing  provision,  which  excludes  per- 
sons who  hold  any  office  under  the  General  Government  from  being 
appointed  electors  of  President  and  Vice-President  of  the  United 
States,  was  to  prevent  combinations  and  intrigues  between  pre-exist- 
ing officials  and  the  candidates  for  the  two  highest  offices  in  the  gift 
of  the  people.     This  clause  requires  that  the  electors  shall  come 
direct  and  fresh  from  the  people,  untrammeled  by  existing  official 
relations. 

§  2.  The  clause  forbidding  membership  of  either  house  to  officers 
under  the  General  Government  has  been  noticed  in  treating  of  the 
eligibility  of  senators  and  representatives,  and  need  not  be  discussed 
here. 

§  3.  Senators  and  representatives,  although  not  officers  of  the 
United  States,  are  excluded  from  being  electors  of  President  and 
Vice-President.  The  same  reasons,  however,  why  United-States 
officers  should  not  be  electors,  bear  with  increased  force  against 
members  of  Congress  assuming  that  trust.  (See  Executive  Depart- 
ment.) 

§  4.  The  Constitution  forbids  the  appointment  of  members  of 
Congress  to  any  civil  offices  created,  or  the  emoluments  whereof  have 
been  increased,  during  the  terms  for  which  such  members  were  elect- 
ed.    The  object  of  these  provisions  is  apparent.     It  is  to  forbid  the 


Part  II.]  relating  to  officers.  227 

creation  of  offices  with  tempting  salaries,  or  the  increase  of  the  sala- 
ries of  offices  already  in  existence,  with  the  design  of  obtaining  those 
salaries  on  the  part  of  those  who  should  assist  in  creating  or  increas- 
ing them.     (See  appendix  to  Analysis  D.) 

ART.  II.  — FOREIGN   PATRONAGE. 

No  person  holding  any  office  under  the  Government  of  the 
United  States  shall,  without  the  consent  of  Congress^  accept 
of  any  present,  emolument^  office,  or  title,  of  any  kind  what- 
ever, from  any  king,  prince,  or  foreign  State.   50, 

§  1.  According  to  the  theory  of  our  government,  American  citi- 
zenship confers  equality.  Democracy  abhors  titular  distinctions. 
The  chief  purpose  of  this  clause  is  to  forbid  the  acceptance  of  these 
distinctions  and  bribes,  in  whatever  form  they  may  be  tendered  by 
foreign  powers,  which,  if  received  by  an  officer  under  our  govern-^ 
ment,  might  seduce  him  from  the  faithful  discharge  of  duty  to  his 
own  country. 

§  2.  A  private  citizen,  it  will  be  observed,  does  not  come  under 
this  prohibition ;  nor  does  an  officer  under  any  State  government. 
It  is,  perhaps,  to  be  regretted  that  this  prohibition  was  not  extended 
farther,  so  as  to  include  all  American  citizens.  Were  a  costly  pres- 
ent to  be  made  by  the  Emperor  of  France  or  the  Queen  of  England 
to  the  President  of  the  United  States,  he  would  not  be  at  liberty  to 
accept  it  on  his  own  account,  though  he  might  in  behalf  of  the 
people,  and  have  it  preserved  in  the  archives  of  the  nation,  as  it 
might  seem  rude  to  decline  it. 

ART.  III.  — THE  PRESIDENT. 

1.  The  compensation  for  the  services  of  the  President  of  the 

United  States  shall  neither  he  increased  nor  diminished 
during  the  period  for  which  he  shall  have  been  elected. 

2.  He  shall  not  receive  within  that  period  any  other  emolu- 

ment from  the  United  States,  or  any  State.  58. 
This  article  will  receive  attention  when  we  come  to  the  discussion 
of  the  Executive  Department. 


228  ANALYSIS   OF  CIYLL  GOVERNMENT.     [Part  II. 

ART.  IV.  —  IMPEACHMENT. 

1.  The  President^  Vice-President,  and  all  ci oil  officers  of  the 

United  States,  shall  be  removed  from  office  on  impeach- 
ment for  and  conviction  of  treason,  hribery,  or  otJier 
high  crimes  or  misdemeanors.    64. 

2.  Judgment  in  cases  of  impeachment  shall  not  extend  fur- 

ther than, 

1st.   To  removal  from  office ;  and, 
2c?.  Disqualification  to  hold  and  enjoy  any  office  of 
honor .^  trust.,  or  profit  under  the  United  States. 

3.  The  party  convicted  shall  nevertheless  he  liable  and  subject 

to  indictment^  trial,  judgment.,  and  punishment  according 

to  law.    14:. 
The  subject  of  impeachment  has  been  fully  presented  in  the  first 
and  second  chapters  of  Part  II.  of  this  work.     It  will  be  found  in 
Art.  IX.  of  Chap.  I.,  and  Art.  X.,  Chap.  II. 


CHAPTER    YIII. 

RIGHTS    OF    STATES. 

ARTICLE  I.  — REPRESENTATION. 

1.  Each  State  shall  have  at  least  one  representative.   «$• 

2.  No  amendment  shall  be  made  to  the  Constitution  depriv- 

ing any  State,  without  its  consent,  of  its  equal  suffrage 
in  the  Senate.   TS. 

§  1.  The  first  paragraph  of  this  article  is  one  of  the  clauses  of 
the  fifth  paragraph  of  the  Constitution,  as  it  is  numbered  for  con- 
venience of  reference.  With  the  clause  with  which  it  stands  in 
connection,  it  reads  thus:  "The  number  of  representatives  shall 
not  exceed  one  for  every  thirty  thousand ;  but  each  State  shall  have 
at  least  one  representative."  It  is  not  here  declared  that  iharo shall 
be  one  representative  for  every  thirty  thousand,  but  that  the  pro- 
portion shall  not  exceed  that. 

§  2.  At  the  taking  of  the  first  census,  in  1790,  it  was  ascertained 
that  the  State  having  the  least  number  of  inhabitants,  Delaware, 


Part  II.]  RIGHTS  OF  STATES.  229 

contained  over  fifty-nine  thousand.  In  1860,  the  population  of  that 
State  was  a  little  over  a  hundred  and  twelve  thousand ;  not  enough, 
however,  to  give  it  one  representative,  were  it  not  for  this  clause, 
which  says  that  "  each  State  shall  have  at  least  one  representative ; " 
for  in  1860  the  ratio  of  representation  was  fixed  at  one  member  for 
127,316  inhabitants. 

§  3.  The  authors  of  the  Constitution  foresaw  that  the  population 
of  this  country  would  rapidly  increase  for  ages  after  their  labors 
were  done,  and  that  many  new  States  would  be  added  to  the  Uoion. 
They  also  saw  that  it  would  not  do  to  provide  for  increasing  the 
number  of  members  in  the  House  of  Representatives  in  proportion 
to  the  increase  of  population ;  for,  in  such  case,  that  body  would 
soon  become  inconveniently  large  for  the  purposes  of  legislative  de- 
liberation. Within  one  hundred  years  from  the  adoption  of  the 
Constitution,  our  country  will  number  nearly  one  hundred  millions. 
Were  the  House  Of  Representatives,  then,  to  have  one  member  for 
every  thirty  thousand,  it  would  have  3,333  members. 

§  4.  When  the  time  anives  that  the  United  States  shall  number 
two  hundred  and  fifty  millions,  the  House  of  Representatives  will 
probably  be  constituted  on  the  basis  of  not  over  one  member  to  a 
million  of  inhabitants.  There  will  be  many  States,  probably,  at  that 
time,  which  will  not  contain  more  than  two  or  three  hundred  thou- 
sand each.  Especially  will  this  be  true  of  the  younger  and  the 
smaller  of  the  older  States.  But  these  States  must  have  at  least  one 
representative  each,  or  they  must  be  unrepresented  in  the  national 
councils.  Hence  the  necessity  of  this  provision,  that  "each  State 
shall  have  at  least  one  representative." 

§  5.  There  are  several  States  now  in  the  Union,  which,  but  for 
this  provision  of  the  Constitution,  would  not  be  entitled  to  representa- 
tion in  the  House.  They  have  not  the  necessary  number  of  inhabit- 
ants ;  but  they  each  have  one  member  on  account  of  this  clause. 

§  6.  The  second  clause  of  the  article  under  consideration  refers 
to  equality  of  State  representation  in  the  Senate.  When,  in  the 
Constitutional  Convention,  the  smaller  States  consented  that  popula- 
tion might  become  the  basis  of  representation  in  the  House,  it  was 
upon  the  express  condition  that  there  should  be  equnlity  of  repre- 


230  ANALYSIS  OF  CIVIL  GOVEENMENT.     [Part  II. 

sentation  in  the  Senate.  So  tenacious  were  the  smaller  States  on 
this  point,  that  they  insisted  on  and  obtained  this  Constitutional  pro- 
vision. No  majority  of  the  States,  however  large,  can  change  this 
clause  of  the  Constitution  so  long  as  there  is  one  State  that  refuses 
its  consent  to  such  change.  The  provision  is  for  the  protection  of 
the  smaller  States. 

ART.  II.  — PRIVILEGES  OF  CITIZENSHIP. 

The  citizens  in  each  State  shall  be  entitled  to  all  the  priv- 
ileges and  immunities  of  citizens  of  the  several  States.    72, 

The  purpose  of  this  clause  is  to  create  a  general  national  citizen- 
ship. Perhaps  it  does  not  so  properly  come  under  the  rights  of 
States  as  the  rights  of  citizens  derived  from  the  States.  A  person 
being  a  citizen  in  one  State  of  the  Union  may  remove  to  any  other 
without  prejudice  to  his  social,  pecuniary,  or  political  rights  in  his 
new  home.  He  may  purchase,  hold,  convey,  and  inherit  property, 
and  enjoy  all  other  rights  arising  from  citizenship,  the  same  as  though 
he  were  born  or  naturalized  in  the  State  to  which  he  emigrates. 
These  are  rights  in  the  enjoyment  of  which  he  can  not  only  claim 
the  protection  of  the  United  States,  but  of  the  States  from  which 
and  to  which  he  removes.     (See  appendix  to  Analysis  B.) 

ART.  III.  — STATE    AMITY. 

Full  faith  and  credit  shall  be  given  in  each  State  to  the  acts, 
records,  and  judicial  proceedings  of  every  other  State.   71, 

This  provision  confers  at  once  a  right  on  States  and  a  right  on 
individuals ;  and  it  imposes  obligations  on  States :  1st.  A  State 
has  the  right  to  demand  of  another  State  that  its  acts,  records,  and 
judicial  proceedings,  shall  be  respected,  and  that  full  faith  and 
credit  shall  be  given  to  them.  2d.  Individuals  may  demand  the 
same,  when  that  demand  is  necessary  to  the  vindication  of  their 
rights.  And,  3d,  States  on  whom  such  demands  are  properly  made 
are  under  obligations  to  heed  and  respect  them.  A  judgment 
rendered  by  a  court  in  Ohio,  for  instance,  would  be  conclusive  in 
New  York,  provided  the  courts  of  Ohio  would  hold  it  conclusive. 

The  man^er  of  proving  such  acts,  records,  and  judicial  proceed- 


Part  II.]  RIGHTS  OF  STATES.  231 

ings,  and  the  effect  to  be  given  to  their  authenticity,  is,  as  we  have 
seen,  exclusively  under  the  direction  of  Congress. 

AET.  IV.— NEW  STATES. 

1.  N'o  new  State  shall  he  formed  or  erected  within  the  juris- 

diction  of  another  State ; 

2.  N'or  shall  any  State  be  formed  by  the  junction  of  two  or 

more  States^  or  parts  of  States^  without  the  consent  of 
the  legislatures  of  the  States  concerned. 

§  1.  The  first  paragraph  above  was  inserted  by  the  Constitutional 
Convention  to  quiet  the  fears  of  the  larger  States  that  their  terri- 
tory might  be  dismembered  for  the  purpose  of  increasing  the  num- 
ber of  States.  The  second  quiets  the  fears  of  the  smaller  States, 
that  a  junction  of  States  might  take  place  without  their  consent. 

§  2.  No  new  State  has  ever  been  formed  within  the  limits  of  the 
Union  by  the  junction  of  two  or  more  States.  One  new  State  has 
been  formed,  however,  by  the  dismemberment  of  another.  On  the 
passage  of  the  Ordinance  of  Secession  by  the  Virginia  Convention,  a 
convention  of  the  western  counties  of  the  State  was  held  at  Wheel- 
ing May  11,  1861,  and  on  the  17th  unanimously  deposed  the  then 
State  officers,  and  organized  a  State  government. 

§  3.  Nov.  26,  1861,  a  convention  representing  the  western 
counties  of  the  State  assembled  in  Wheeling,  and  formed  a  consti- 
tution for  West  Virginia.  This  constitution  was  submitted  to  the 
people  May  3,  1862,  and  adopted  by  them  by  a  nearly  unanimous 
vote.  The  division  of  the  State  was  sanctioned  by  the  legislature 
May  13,  1862,  and  ratified  by  Congress  Dec.  31,  1862.  West 
Virginia  was  admitted  into  the  Union  June  20,  1863. 

ART.  v.  — ELECTIONS. 

The  timeSj  places,  and  manner  of  holding  elections  of 
senators  and  representatives  shall  be  prescribed  in  each  State 
by  the  legislature  thereof  subject  to  the  revision  of  Congress^ 
except  as  to  the  places  of  choosing  senators.    15. 

This  clause  gives  the  regulation  of  the  election  of  senators  and 
representatives  primarily  to  the  legislative  authority  of  the  several 


'2S2  ANALYSIS   OF  CIVIL  GOVERNMENT.     [Paet  II. 

States.  Should  they  fail  to  exercise  it,  however,  or  exercise  it  im- 
properly, the  interests  of  the  country  would  justify  the  interposition 
of  Congress.     (See  powers  of  Congress,  Art.  XI.,  Part  II.) 

ART.  VI.  — MILITIA  OFFICERS. 

1.  The  appointment  of  the  militia  officers  is  reserved  to  the 

States  respectively. 

2.  Also  the  training  of  the  militia  according  to  the  discipline 

prescribed  by  Congress.   41. 

§  1.  As  the  National  Government  is  to  depend  on  the  several 
States  for  the  militia,  it  seems  proper  that  the  officers  who  are  to 
train  and  discipline  them  should  be  appointed  by  the  States.  This 
arm  or  power  of  national  security  is  in  some  sense  a  local  police 
force,  a  means  of  State  defense,  for  the  proper  organization  and 
discipline  of  which  the  several  States  are  responsible  to  the  national 
authority. 

§  2.  But,  in  order  that  there  may  be  uniformity  of  organization 
and  discipline,  it  is  lefb  with  Congress  to  prescribe  the  mode.  In 
case  of  invasion  by  a  foreign  power,  or  a  wide-spread  rebellion,  the 
militia  of  States  distant  from  each  other  may  be  placed  side  by  side 
in  the  same  army.  Hence  the  necessity  of  uniformity  of  discipline, 
and  of  its  being  under  the  direction  of  a  single  power,  instead  of 
being  distributed  among  the  several  States.  The  States  respec- 
tively have  the  training  of  the  militia ;  but  Congress  prescribes  the 
mode  of  discipline. 

ART.  Vir— FEDERAL  PROTECTION. 

1.  The  United  States  shall  guarantee  to  every  State  in  the 

Union  a  republican  form  of  government. 

2.  Shall  protect  each  State  against  invasion  / 

3.  Also  against  dom.estic  violence, 

1st.  On  the  application  of  the  legislature  of  the  State  ;  or, 

2d.    On  application  of  the   State  JExecutive  when  the 

legislature  can  not  be  convened.    77» 

§  1.  The  United  States  is  one  great  political  family,  and  each 

State  is  a  member  of  that  family ;  and  each  member  has  the  right  of 


PakT  II.]  EIGHTS   OF  STATES.  233 

protection  from  invasion  mthout  or  insurrection  within.  The  want 
of  a  provision  similar  to  this  was  a  serious  defect  in  the  Articles  of 
Confederation.  This  is  one  of  those  State  rights  that  give  assurance 
of  the  stability  and  solidity  of  the  State  governments,  as  well  as  the 
perpetuity  of  the  Federal  Union.  In  every  age  of  the  world,  and 
among  all  nations,  there  have  been  designing,  intriguing,  ambitious 
demagogues,  ready  to  originate  the  most  wicked  schemes  for  the 
overthrow  of  the  governments  under  which  they  lived.  Human 
nature  is  much  the  same  in  every  age ;  and  but  for  this  guaranty  on 
the  part  of  the  United  States,  and  this  right  on  the  part  of  the 
States,  the  form  of  a  State  government,  at  some  unlucky  moment, 
and  under  the  sway  of  vile  intriguers,  might  be  changed  from  a 
republic  to  a  monarchy. 

§  2.  The  States  have  the  right  of  Federal  protection  from  foreign 
invasion.  They  have  no  right  to  declare  war,  nor  even  to  engage  in 
it  as  States,  unless  the  danger  is  so  imminent  as  not  to  admit  of  de- 
lay. For  the  surrender  of  this  right,  it  is  but  reasonable  that  the 
National  Government  should  pledge  its  power  to  defend  thcra. 

§  3.  Perhaps  there  is  more  danger  under  a  republican  form  of 
government,  than  under  any  other,  of  outbreaks  of  domestsc  violence. 
Enjoying,  as  the  people  do,  a  greater  degree  of  freedom  under  this 
than  under  other  forms  of  goveiniiicnt,  that  freedom  is  correspond- 
ingly more  liable  to  be  abused.  Our  own  history  has  demonstrated 
this  tendency.  Several  times  it  has  been  found  necessary  to  call 
out  the  Federal  troops  to  protect  the  States  from  internal  dissensions, 
and  to  crush  open  and  high-handed  defiance  of  State  laws.  The 
Federal  authority  may  be  invoked  for  this  purpose  by  the  legislature 
of  the  State,  if  in  session,  in  which  the  insurrection  occurs.  If  the 
legislature  is  not  in  session,  and  can  not  be  readily  convened,  the 
Governor  of  the  State  may  call  on  the  President  of  the  United 
States  for  the  necessary  aid. 

ART.  Vril.  — FUGITIVES. 

1.  From  Justice. — A  person  charged  in  any  State  with 
treason,  felony^  or  other  crime,  xoho  shall  flee  from  jus- 
tice, and  he  found  in  another  State,  shall,  on  demand 


£34  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 

of  the  executive  authority  of  the  State  from  which  he 

fled,  be  delivered  up,  to  be  removed  to  the  State  having 

jurisdiction  of  the  crime.   T3. 

2.  From  Service.  —  No  person  held  to  service  or  labor  in  one 

State  under  the  laws  thereof    escaping  into   another, 

shall.,  in  consequence  of  any  law  or  regulation  therein, 

be  discharged  from  such  service  or  labor ^  but  shall  be 

delivered  up  on  claim  of  the  party  to  whom  such  service 

or  labor  may  be  due.    74:. 

§  1.  The  several  States  are  political  neighbors  to  each  other.    By 

the  first  of  the  foregoing  provisions,  if  the  laws  of  a  State  have  been 

outraged  by  the  commission  of  a  grave  crime,  and  the  criminal  flees 

to  a  neighboring  State,  it  is  the  right  of  the  State  whose  laws  have 

been  violated  to  pursue  the  criminal,  and  bring  him  back  for  trial. 

No  State  has  the  right  to  become  an   asylum  for  criminals.     This 

would  afford  a  direct  encouragement  to  hardened  depravity. 

§  2.  By  an  act  of  Congress,  passed  Feb.  12, 1798,  provision  was 
made  for  enforcing  this  clause  of  the  Constitution.  To  secure  the 
return  of  a  fugitive  from  justice,  according  to  that  act,  the  following 
steps  must  be  taken  :  — 

1st.  The  Executive  of  the  State  in  which  the   crime  is   committed 
must  make  demand  for  the  return  of  the  criminal  on  the 
Executive  of  the  State  to  which  the  criminal  has  fled. 
2d.    The  demand  must  be  accompanied  with  a  copy  of  the  indict- 
ment against  the  criminal ;  or, 
8d.    By  an  affidavit  made  before  a  magistrate,  charging  the  person 
demanded  with  having  committed  the  crime,  and  having  fled 
from  justice. 
4th.  The  copy  of  the  indictment,  or  the  affidavit,  must  be  certified 
by  the  governor  or  chief  magistrate  making  the  demand,  to 
be  authentic. 
5th.  When  this  is  done,  it  is  the  duty  of  the  Executive  of  the  State 
to  which  the  person  has  fled  to  cause   the  accused  to  be 
arrested  and  secured. 
6th.  It  is  the  duty  of  the  Executive  causing  the  arrest  to  give  notice 
thereof  to  the  Executive  making  the  demand,  or  to  his  agent. 


Part  II.]  EIGHTS  OF  STATES.  235 

7th.  Following  these  proceedings,  the  person  charged  with  the  crime 

is  delivered  over  for  trial  to  the  State  authorities  from  which 

he  fled. 

§  3.  The  clause  relating  to  fugitives  from  service  refers  to 

slaves  exclusively.     An  act  was  passed  by  Congress  to  enforce  this 

provision  of  the  Constitution,  Feb.   12,   1793,  and  was  amended 

Sept.  18,  1850 ;  and  both  the  act  and  amendment  were  repealed 

June  28,  1864.     In  1865,  an  article  of  amendment  to  the  Cousti- 

tution  was  ratified  by  a  sufficient  number  of  States  to  render  it  a 

part  of  that  instrument,  for  ever  aboHshing  slavery  in  the  United 

States  and  its  territories.     The  clause  which  we  are  now  considering 

is,  therefore,  no  longer  operative. 

ART.  IX. -RESERVATIONS. 

1.  The  powers  not  delegated  to  the  United  States  hy  the  Con- 

stitution, nor  prohibited  by  it  to  the  States,  are  reserved 
to  the  States  respectively^  or  to  the  people.   9S. 

2.  The  enumeration  in  the  Constitution  of  certain  rights 

shall  not  be  construed  to  deny  or  disparage  others  re- 
tained by  the  people.  91  • 
§  1.  The  first  paragraph  above  is  intended  as  a  general  rule  of 
interpretation,  to  be  applied  to  the  Constitution  in  cases  of  doubtful 
right,  as  between  State  and  United-States  authority.  The  powers 
of  the  National  Grovernment  are  limited,  being  conferred  and  enume- 
rated by  the  people  of  the  United  States.  The  powers  not  enu- 
merated are  reserved  to  the  States  or  the  people.  But  this  must  be 
understood  with  some  qualification.  All  the  powers  of  the  National 
Government  are  not  expressed  in  the  Constitution,  nor  could  they 
be.  For  instance,  the  power  to  provide  for  the  general  welfare  is 
expressed;  but  no  attempt  is  made  in  that  instrument  to  define  all 
the  means  that  may  be  adopted  to  secure  that  object. 

§  2.  Again  :  the  power  to  regulate  commerce  with  foreign  nations, 
among  the  States,  and  with  the  Indian  tribes,  is  expressed  in  the 
Constitution;  but  all  means  that  may  become  necessary  to  make 
this  power  efiective  are  not  enumerated,  nor  could  they  be  by  any 
possible  human   forecast.     A  power  conferred  always  implies  the 


236  ANALYSIS   OF  CIVIL  GOVERNMENT.     [Part  II. 

riglit  to  adopt  the  necessary  means  to  make  that  power  effective, 
though  they  are  not  specified. 

§  3.  When  this  amendment  was  considered  in  Congress,  there 
was  an  effort  made  to  insert  the  word  "expressly  "  before  the  word 
"delegated;"  so  that  it  would  read,  "the  powers  not  expressly 
delegated  to  the  United  States  by  the  Constitution,  nor  prohibited 
by  it  to  the  States,  are  reserved  to  the  States  respectively,  or  to  the 
people."  But,  after  thorough  discussion,  this  word  "expressly" 
was  stricken  out. 

%  4.  The  second  paragraph  of  Art.  IX.,  the  learned  commentator. 
Judge  Story,  says,  "  was  manifestly  introduced  to  prevent  any  per- 
verse or  ingenious  misapplication  of  the  well-known  maxim,  that  an 
affirmative  in  particular  cases  implies  a  negative  in  all  others;  and, 
e  converso,  that  a  negation  in  particular  cases  implies  an  affirmation 
in  all  others."  In  other  words,  it  does  not  follow,  nor  is  this  con- 
struction to  be  tolerated,  that,  because  certain  rights  are  admitted  as 
belonging  to  the  people,  all  other  rights  are  surrendered  to  the 
government.  The  people  have  rights,  therefore,  that  the  Constitu- 
tion does  not  enumerate. 


CHxVPTER  IX. 

STATE    SUBORDINATION. 

ARTICLE  I.  — ORIGIN  OF  STATE  OBLIGATIONS. 

1.  Constitution.  —  The  ratification  of  the  conventions  of 
nine  States  was  declared  to  he  sufficient  for  the  establish- 
ment of  the  Constitution  between  the  States  so  ratify- 
ing  the  same.  8S. 
Amendments. —  Whenever  amendments  to  the  Constitution 
are  proposed  in  accordance  with  the  terms  of  that  in- 
strument^ they  become  valid,  to  all  intents  and  purposes, 
as  a  part  of  it,  — 

\st.  When  ratified  by  the  conventions  of  threefourtha 

of  the  several  States  ;  or, 
2d.  By  the  legislatures  of  three-fourths  thereof.   T8. 


Part  II.]  STATE  SUBORDINATION.  237 

§  1.  The  Constitution,  as  has  been  seen,  was  framed  by  a  Con- 
vention of  delegates  from  nearly  all  the  States,  which  met  in  Phila- 
delphia in  May,  1787.  When  their  labors  were  done,  the  proposed 
Constitution  was  submitted  to  Congress,  with  the  recommendation 
that  it  should  be  submitted  for  ratification  to  State  Conventions 
constituted  of  delegates  chosen  by  the  people  of  the  several 
States. 

§  2.  But  it  was  presumed  that  there  might  be  considerable  hesi- 
tation and  delay  on  the  part  of  some  of  the  States  in  ratifying  the 
Constitution.  This  had  been  the  case  with  the  Articles  of  Confed- 
eration. Hence  this  provision,  that  nine  States  (over  two-thirds) 
accepting  the  Constitution  should  be  sufficient  for  its  establishment 
as  between  those  States.  Had  a  unanimous  ratification  by  the 
States  been  required  before  the  new  government  could  go  into  oper- 
ation, the  delay  might  have  been  several  years  longer  than  it  was ; 
for  States,  like  individuals,  are  influenced  by  example.  But,  finding 
that  success  was  made  sure  at  an  early  day,  in  less  than  three  years 
after  the  adjournment  of  the  Constitutional  Convention,  every  State 
gave  its  adhesion  to  the  new  government. 

§  3.  The  origin  of  the  obligations  of  the  States  to  the  General 
Government  is  founded  in  their  assent  to  the  Constitution  of  the 
United  States.  Before  ratifying  the  Constitution,  the  States  were 
at  liberty  to  make  their  choice  :  they  could  come  into  the  Union,  or 
stay  out.  Should  they  refuse  their  assent  to  the  terms  of  national 
association,  they  would  each  be  an  independent  political  division, 
having  all  the  attributes  and  prerogatives  of  sovereign  States.  But, 
having  accepted  the  terms  of  Union,  they  became  subordinate  to  the 
national  authority. 

§  4.  The  same  remarks  apply,  and  with  equal  truth  and  force,  to 
the  amendments  that  have  been  or  that  may  be  made  to  the  Con- 
stitution. But  there  is  this  difference  with  regard  to  the  amend- 
ments, —  that  a  State  may  be  bound  by  them  tmfhout  its  consent, 
provided  the  terms  of  the  original  instrument  have  been  complied 
with  in  adopting  them,  three-fourths  of  the  States  assenting  to 
them.  It  devolves  on  Congress,  or  on  the  Stiite  legislatures,  to 
take  the  initiatory  steps  in  making  amendments  to  the  Constitution 


238  ANALYSIS   OF  CIVIL  GOVEENMENT.     [Part  II. 

of  the  United  States,  as  we  have  seen  in  Art.  XIII.,  Chap.  IV.,  Part 
II.,  of  this  work.  But,  when  those  steps  have  been  properly  taken, 
it  requires  but  three-fourths  of  the  conventions  or  legislatures  of  the 
several  States  to  render  the  amendments  valid,  to  all  intents  and 
purposes,  as  a  part  of  the  Constitution.  Even  though  the  other  one- 
fourth  of  the  several  States  shall  not  agree  to  the  amendments,  the 
amendments  are  just  as  binding  on  them  as  on  the  States  yielding 
their  assent. 

ART.  II.  — SUPREMACY  OF  UNITED-STATES  AUTHORITY. 

1.  The  supreme  law  of  the  land  shall  he,  — 

1st.    The  Constitution  of  the  United  States, 
2d.  All  laws  made  in  pursuance  thereof 
dd.  All  treaties  made,  or  which  shall  be  made^  under 
the  authority  of  the  United  States. 

2.  The  judges  in  every  State  shall  be  bound  thereby,  notwith- 

standing any  thing  in  the  constitution  or  laws  of  any 
State  to  the  contrary.  80. 
§  1.  The  clause  in  the  Constitution  from  which  this  article  in  the 
Analysis  is  taken  says,  "  This  Constitution,  and  the  laws  of  the 
United  States  which  shall  be  made  in  pursuance  thereof,  and  all 
treaties  made,  or  which  shall  be  made,  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land ;  and  the  judges 
in  every  State  shall  be  bound  thereby,  any  thing  in  the  constitution 
or  laws  of  any  State  to  the  contrary  notwithstanding." 

§  2.   Here  is  a  solemn  declaration  of  the  binding  and  supreme 
authority  over  all  State  authority,  — 

1st.  Of  the  Constitution  of  the  United  States ; 
2d.    All  laws  made  in  pursuance  of  it ;  and 
3d.    All  treaties  made  under  it. 
In  case  of  collision  of  authority  between  the  United  States  and 
any  particular  State,  the  former  is  supreme.     Without  this  provis- 
ion, the  authors  of  the   Constitution  were  of  the  opinion  that  it 
would  have  been  radically  defective. 

§  3.  If  the  United-States  authority  were  not  supreme,  the  author- 
ity of  the  States  must  be  so.     Were  the  State  authority  supreme, 


Part  II.]  STATE  SUBORDINATION.  239 

the  National  Government  would  be  characterized  by  all  the  weakness 
and  imbecility  of  the  Confederation.  Every  principal  power  of  the 
new  Constitution  would  have  proved  a  failure. 

§  4.  The  clause  and  powers  under  consideration  met  with  earnest 
opposition  while  the  Constitution  was  before  the  people  for  discussion. 
Alexander  Hamilton,  one  of  the  writers  of  the  articles  in  "  The 
Federalist,"  says,  "  But  it  is  said  that  the  laws  of  the  Union  are 
to  be  the  supreme  law  of  the  land.  What  inferences  can  be  drawn 
from  this  ?  or  what  would  they  amount  to  if  they  were  not  to  be 
supreme  ?  It  Ls  evident  they  would  amount  to  nothing.  A  law,  by 
the  very  meaning  of  the  term,  includes  supremacy.  It  is  a  rule 
which  those  to  whom  it  is  prescribed  are  bound  to  observe.  This 
results  from  every  political  association." 

§  5.  A  treaty  has  been  defined  to  be  a  solemn  and  binding  bar- 
gain between  two  or  more  parties  competent  to  contract,  the  parties 
being  nations.  But  it  is  something  more  than  a  contract.  It  has 
not  only  all  the  force  of  a  contract  as  between  the  parties  concerned, 
but  all  the  binding  authority  of  a  law  on  the  subjects  or  citizens  of 
the  contracting  parties.  The  issues  of  peace  and  war  often  depend 
on  the  faithful  or  unfaithful  observance  of  treaties.  No  nation  would 
be  willing  to  make  a  treaty  with  us  which  should  be  binding  on 
them,  but  which  our  own  citizens  were  at  liberty  to  disregard  at 
pleasure.  The  national  faith  is  pledged  in  treaties,  and  there  must 
be  home  authority  to  enforce  then:  obligations  on  the  citizen  and  sub- 
ject 

ART.  in.— OFFICIAL  OATH. 

1.  The  members  of  the  several   State  legislatures  shall  he 

hound  hy  oath  or  affirmation  to  support  the   Constitu- 
tion of  the  United  States, 

2.  All  executive  officers  of  the  several  States  shall  he  hound 

in  liJce  manner. 

3.  Also  all  judicial  officers  of  the  several  States.   81. 

§  1.  By  reference  to  the  clause  of  the  Constitution  from  which 
this  article  is  taken,  it  will  bo  seen  that  senators  and  representatives 
are  included  among  those  who  are  to  take  the  oath   to  support  the 


240  ANALYSIS    OF   CIVIL  GOVERNMENT.     [Part  11. 

Constitution  of  the  United  States.  Their  oath  of  office  was  consid- 
ered in  treating  of  the  "  provisions  common  to  both  houses."  No 
one  doubles  the  propriety  of  requiring  an  oath  or  affirmation  of  this 
character  of  those  immediately  concerned  in  the  administration  of 
the  National  Grovernment ;  but,  while  the  Constitution  was  before 
the  people  for  ratification,  strong  objections  were  made  to  requiring 
that  a  similar  obligation  should  be  taken  by  State  officers. 

§  2.  Why,  then,  should  the  legislative,  executive,  and  judicial 
officers  of  the  several  States  be  obliged  to  take  on  themselves  this 
solemn  obligation?  Because  the  members  and  officers  of  the  State 
governments  have  an  essential  agency  in  giving  effect  to  the  Federal 
Constitution.  The  election  of  the  President  and  Senate  will  depend, 
in  all  cases,  on  the  legislatures  of  the  several  States.-^  In  many 
cases,  th3  election  of  the  House  of  Representatives  may  be  efiected 
by  their  agency. 

§  3.  Tiie  judges  of  the  State  courts  will  frequently  be  called  upon 
to  decide  upon  the  Constitution  and  laws  and  treaties  of  the  United 
States,  and  upon  rights  and  claims  growing  out  of  them.  Decisions 
ought  to  be,  as  far  as  possible,  uniform ;  and  uniformity  of  obliga- 
tion will  greatly  tend  to  such  a  result.  The  executive  authority  of 
the  several  States  may  be  often  called  upon  to  exert  powers  or  allow 
riglits  given  by  the  Constitution,  as  in  filling  vacancies  in  the  Senate 
daring  the  recess  of  the  legislature  ;  in  issuing  writs  of  election  to 
fill  vacancies  in  the  House  of  Representatives ;  in  officering  the 
militia,  and  giving  eff'ect  to  laws  for  calling  them  out ;  and  in  the  sur- 
render of  fugitives'  from  justice.^ 


CHAPTER  X. 

STATE   PROHIBITIONS. 

ARTICLE  I.  — STATE  RELATIONS. 

1.  N'o  State  shall  enter  into  any  treaty,  alliance^  or  confederal 
Hon,  S 1  ;  nor, 

1  The  Federalist,  No.  44. 

*  Storj  on  the  Constitution,  §  1 ,445. 


Part  II.]  STATE  prohibitions.  241 

2.  Into  any  agreement  or  compact  with  another  State^  or  with 
a  foreign  power ^  without  the  consent  of  Congress.   S2, 

§  1.  Both  of  these  provisions,  in  substance,  were  in  the  Articles  of 
Confederation.  The  Constitution  of  the  United  States  was  estab- 
lished for  the  government  of  the  people  as  one  nation,  and  not  for 
the  government  of  the  individual  States.  But,  that  the  objects  of 
the  National  Government  might  be  secured  without  embarrassment, 
it  was  necessary  to  impose  restrictions  on  the  States.  "Were  the 
States  at  liberty  to  treat  with  foreign  powers  or  neighboring  States, 
they  might  enter  into  such  arrangements  as  would  interfere  with 
those  made  by  the  General  Government  at  home  and  abroad. 

§  2.  If  the  States  were  permitted  to  enter  into  treaties  with  for- 
eign powers,  the  authority  of  the  General  Government  on  the  same 
matter  would  be  at  an  end.  One  State  might  enter  into  such  en- 
gagements as  would  materially  conflict  with  the  interests,  not  only 
of  the  General  Government,  but  of  the  other  States.  This  would 
endanger,  and  perhaps  destroy,  the  peace  and  harmony  of  the  whole 
Un'.on.  Foreign  powers  might  secure  an  advantage  over  all  the 
States  by  securing  the  favor  of  one  State.  In  time  of  war,  such 
advantage  might  be  used  to  the  destruction  and  overthrow  of  the 
whole  country  and  its  institutions. 

§  3.  If  States  were  permitted  tor  enter  into  compacts  or  agree- 
ments with  each  other,  they  might  make  such  arrangements  as  would 
wholly  neutralize  the  powers  of  Congress  to  regulate  commerce 
among  the  States.  These  compacts  and  agreements  between  the 
States  might  be  so  extended  as  that  one  half  the-  number  would  be 
arrayed  against  the  other  half.  Endless  domestic  discord  would 
result  by  consequence. 


ART.  II.  — COMMERCIAL. 

1 .  No  State  shall  coin  money  /  nor^ 
2*  Emit  bills  of  credit ;  nor, 

3.  Make  any  thing  but  gold  and  silver  coin  a  tender  in  pay- 

ment of  debts  ;  nor, 

4.  Pass  any  law  impairing  the  obligation  of  contracts.  M.» 

16 


242  ANALYSIS   OF   CIVIL   GOV^BNMENT.     [Part  II. 

§  1.  These  are  all  commercial  prohibitions.  The  power  to  coin 
money  is  confided  to  the  General  Government.  Were  the  States 
invested  with  it,  the  effect  would  be  "to  multiply  expensive  mints, 
and  diversify  the  forms  and  weights  of  the  circulating  coins."  This 
would  destroy  all  hope  of  uniformity  of  currency,  and  would  seri- 
ously cripple  and  embarrass  the  interests  of  commerce. 

§  2.  By  bills  of  credit,  as  here  used,  is  meant  bank-bills,  such  as 
are  usually  circulated  as  money  in  business  transactions.  As  the 
power  to  coin  money  is  denied  to  the  States,  certainly  they  should 
not  be  allowed  to  issue  a  paper  medium  to  take  the  place  of  gold 
and  silver. 

§  3.  At  the  close  of  the  Revolutionary  War,  and  for  some  years 
afterwards,  the  whole  country  was  flooded  with  a  nearly  worthless 
paper  currency.  True,  it  was  issued  under  the  direction  of  Con- 
gress ;  but  it  was  done  with  the  expectation  that  the  States  would 
each  provide  for  the  redemption  of  their  respective  proportions  of 
this  paper  currency.  The  first  issue  was  in  1775,  and  to  the  amount 
of  three  millions.  Congress  asked  the  States  to  provide  for  its  re- 
demption ;  but  it  was  never  done.  This  paper  money  depreciated 
constantly,  notwithstanding  Congress  passed  the  most  stringent  laws 
to  sustain  it,  —  even  going  so  far  as  to  denounce  those  who  should 
refuse  to  receive  it  at  par  as  "  enemies  to  the  liberties  of  the  United 
States." 

§  4.  Four  years  after  the  first  issue,  the  amount  of  paper  circula- 
tion was  upwards  of  one  hundred  and  sixty  millions ;  and,  a  few 
years  after  that,  it  was  extended  beyond  three  hundred  and  fifty  mil- 
lions. The  States  still  failed  to  comply  with  the  requisitions  of 
Congress  to  make  provisions  for  the  redemption  of  this  "  Continental 
currency,"  as  it  was  called.  One  dollar  in  gold  or  silver  was  worth 
from  forty  to  a  hundred  dollars  of  these  paper  promises ;  and  finally 
the  Continental  currency  became  so  utterly  worthless,  that  it  ceased 
altogether  to  circulate. 

§  5.  These  were  the  experiences  that  led  the  authors  of  the  Con- 
stitution to  insert  this  clause,  prohibiting  the  States  from  emitting 
bills  of  credit.  It  should  be  stated  here,  that  the  States  themselves 
also  had  largely  issued  bills  of  credit,  which  had  become  worthless. 


Part  II.]  STATE  PROHIBITIONS.  243 

"  It  was,  therefore,  the  object  of  the  prohibition,"  as  Judge  Story- 
says,  "to  cut  up  the  whole  mischief  by  the  roots,  because  it  had 
been  deeply  felt  throughout  all  the  States,  and  had  deeply  aflfected 
the  prosperity  of  all." 

§  6.  The  States  are  also  forbidden  to  pass  any  laws  making  any 
thing  but  gold  and  silver  coin  a  tender  in  payment  of  debts.  This 
prohibition  has  the  same  general  object  in  view  as  the  preceding 
clauses.  It  is  intended  to  give  uniformity  and  stabihty  to  the  cur- 
rency of  the  country,  and  to  establish  confidence  in  commercial  trans- 
actions. Before  the  adoption  of  the  Constitution,  laws  of  various 
kinds  had  been  passed  by  some  or  all  of  the  States,  requiring  credit- 
ors to  take  worthless,  or  nearly  worthless,  property  in  payment  of 
debts,  at  exaggerated  and  fictitious  appraisement.  ^ 

§  7.  Though  a  State  can  not  make  any  thing  but  gold  and  silver 
a  tender  in  payment  of  debts,  yet  this  prohibition  does  not  apply  to 
the  General  Government.  A  large  part  of  the  present  paper  circu- 
lation of  the  United  States,  as  well  as  for  several  years  past,  is  legal 
tender.     But  this  is  national  currency. 

§  8.  The  States  are  also  prohibited  from  passing  any  law  impair- 
ing the  obligation  of  contracts.  But  Congress  has  this  authority, 
and  has  lately  passed  a  uniform  bankrupt  law,  that  is,  uniform  through- 
out all  the  States ;  the  same  in  one  State  as  in  another.  A  contract 
may  be  defined,  an  agreement  between  two  or  more  parties  com- 
petent to  contract,  based  on  a  sufficient  consideration,  each  promis- 
ing to  do  or  not  to  do  some  particular  thing  possible  to  be  done,  not 
enjoined  or  prohibited  by  law. 
1st.  The  parties  must  be  competent  to  contract ;  that  is,  of  proper 

age,  sound  mind,  not  under  duress,  nor  alien  enemies. 
2d    There  must  be  a  sufficient  consideration,  though  this  need  not 
always  be  a  money  consideration.     Previous  moral  or  legal 
obligation  may  be  sufficient ;  or  the  promise  of  one  party  may 
be  sufficient  ground  for  the  promise  of  the  other. 
3d.  The  thing  to  be  done  must  be  possible.     A  contract  to  build  a 

city  in  a  day  would  be  void  for  impossibility. 
4th.  The  thing  to  be  done  must  not  be  such  as  the  law  already  en- 
joins, as  that  the  party  promises  to  properly  observe  the  Sab- 
bath or  to  provide  for  his  family. 


itA  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 

6tb.  It  must  not  be  something  forbidden  by  the  laws  of  the  land ; 

as   committing  burglary,   robbery,   assault  and  battery,  or 

arson. 
§  9.  When  a  legal  contract  is  made,  no  State  has  the  right  to  pass 
any  laws  to  defeat  it.  The  legislature  has  no  right  to  interfere 
with  the  intention  of  the  parties,  so  as  in  any  way  to  defeat  it,  or  to 
impose  new  conditions.  But  the  legislature  may  change  the  method 
of  enforcing  a  contract.  For  instance,  suppose,  by  a  law  of  New 
Jersey,  a  man  who  owes  a  debt,  and  can  not  pay  it,  may  be  impris- 
oned :  New  Jersey  may  pass  a  law  abolishing  imprisonment  for 
debt ;  and  that  law  may  open  the  door  of  every  jail  in  the  State,  and 
set  every  debtor  free.  This  is  not  a  law  impairing  the  obligation  of 
contracts ;  for  imprisonment  is  not  payment.  The  debtor  so  released 
from  prison  is  still  under  legal  obligation  to  pay. 

ART.  III.  — WAR. 

1.  No  State  shall  grant  letters   of  marque  and  reprisal^ 

S\  ;  nor, 

2.  Without  the  consent  of  CongresSy  keep  troops,  or  ships  of 

war,  in  time  of  peace  ;  nor, 
8.  Engage  in  war,  unless, 

\st.  Actually  invaded ;  or, 

2(7.  In  such  imminent  danger  as  will  not  admit  of  delay. 

§  1.  This  article,  with  its  divisions  and  subdivisions,  embraces 
all  the  restrictions  imposed  on  the  States  by  the  Constitution  in 
reference  to  making  war.  The  power  of  making  war,  and  of  mak- 
ing treaties  of  peace,  belongs  exclusively  to  the  General  Govern- 
ment. 

§  2.  The  establishment  of  an  army  or  navy  by  a  State  in  times 
of  peace  might  be  a  cause  of  jealousy  between  neighboring  States, 
and  provoke  the  hostilities  of  foreign  neighboring  nations.  Still,  a 
State  maybe  so  situated  that  it  may  become  indispensable  to  possess 
military  forces  to  resist  an  expected  invasion  or  insurrection.  The 
dano'er  may  be  too  imminent  for  delay ;  and,  under  such  circum- 


Part  II.]  STATE  PROHIBITIONS.  245 

stances,  a  State  would  have  a  right  to  raise  troops  for  its  own  safety, 
even  without  the  consent  of  Congress.^ 

For  an  explanation  of  letters  of  marque  and  reprisal,  see  Art. 
VU.,  Chap.  IV.,  Part  II. 

ART,  IV.  — PENALTIES. 

1.  N'o  State  shall  pass  any  bill  of  attainder  ;  nor^ 

2.  Any  ex  post  facto  law.  51, 

The  terms  bill  of  attainder  and  ex  post  facto  law  were  explained 
in  Chap.  VI.,  Art.  VII.,  Part  II.  The  explanation  need  not  be 
repeated  here. 

Bills  of  attainder  and  ex  post  facto  laws  are  contrary  to  the  first 
principles  of  the  social  compact,  and  of  every  principle  of  sound 
legislation.  Congress  is  forbidden  to  pass  them,' as  we  have  seen; 
and  for  the  same,  if  not  for  stronger  reasons,  the  prohibition  is  ex- 
tended to  the  States. 

ART.  v.  — NOBILITY. 

N'o  State  shall  grant  any  title  of  nobility.   51, 

In  Chap.  VI.,  Art.  VI.,  we  have  seen  that  the  United  States  are 
forbidden  to  grant  any  title  of  nobility.  States  are  under  the  same 
prohibition,  and  for  similar  reasons.  It  would  be  absurd  to  provide 
against  the  exercise  of  this  power  by  the  General  Government,  and 
yet  leave  the  States  at  liberty  to  exercise  it.^ 

ART.  VI. -DUTIES. 

1.  N'o  State  shall,  without  the  consent  of  Congress, 

\st.  Lay  any  duty  of  tonnage  ;  nor, 

2c?.  Any  imposts,  or  duties  on  imports  or  exports,  ex- 
cept what  may  be  absolutely  necessary  for  exe- 
cuting its  inspection-laws. 

2.  The  net  produce  of  all  duties   and  imposts  laid  by  any 

State  on  imports  or  exports  shall  be  for  the  use  of  the 
treasury  of  the  United  States.   52, 
§  1 .  Tonnage-duty  is  a  tax  or  duty  laid   on   ships  or  vessels  in 
proportion  to  their  cubical  contents  expressed  in  tons.     A  ton  ex- 

1  Story  on  Const.,  §  1,404.  ^  ibid.,  §  1,400. 


246  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 

pressed  by  measure  is  forty-two  cubic  feet.  States  are  forbidden  by 
the  Constitution  to  lay  any  duties  of  this  kind  without  the  permis- 
sion of  Congress.  In  reference  to  the  subject  of  duties  generally, 
it  was  the  intention  of  the  authors  of  the  Constitution  to  place  ifc 
entirely  under  the  supervision  and  control  of  Congress.  In  the  Con- 
vention that  formed  the  Constitution,  there  was  strong  opposition 
to  this  prohibition  on  the  States ;  and  it  finally  passed  that  body 
by  the  close  vote  of  six  States  against  foui*.  One  State,  being 
divided,  gave  no  vote.  There  was  a  constant,  earnest  struggle 
against  the  surrender  of  State  powers  to  the  General  Government. 

§  2.  Nor  are  States  -allowed  to  lay  duties  of  any  kind,  except 
what  may  be  absolutely  necessary  for  executing  their  inspection- 
laws  ;  and  even  these,  as  we  have  seen  in  another  place,  are  under 
the  supervision  and  control  of  Congress.  This  is  because  to  the 
hands  of  Congress  is  committed  the  regulation  of  commerce,  not 
only  with  foreign  nations,  but  among  the  States.  The  restraint  on 
the  power  of  the  States  over  imports  and  exports  is  enforced  by  all 
the  arguments  which  prove  the  necessity  of  submitting  the  regula- 
tion of  trade  to  the  Federal  councils.^  Inspection-laws  are  not, 
strictly  speaking,  regulations  of  commerce.  Their  oliject  is  to  im- 
prove the  quality  of  articles  produced  by  the  labor  of  the  country, 
and  to  fit  them  for  exportation  or  for  domestic  use.  These  laws 
act  upon  the  subject  before  it  becomes  an  article  of  commerce.^ 

The  whole  power  to  lay  duties  and  imposts  on  imports  and  exports, 
and  to  lay  a  tonnage-duty,  is,  doubtless,  properly  considered  a  part  of 
the  taxing  power ;  but  it  may  also  be  applied  as  a  regulation  of  com- 
merce.* 

ART.  VII.  — SLAVERY. 

Keither  slavery  nor  involuntary  servitude,  except  as  a  pun- 
ishment for  crime  whereof  the  party  shall  have  been  duly 
convicted,  shall  exist, 

1.  Within  the  limits  of  the  United  States  ;  nor, 

2.  T?i  any  place  subject  to  their  jurisdiction.   97, 

1  The  Federalist,  No.  44.  2  Kent's  Com.,  Lect.  19. 

»  Federalist,  No.  7,  22. 


Part  II.]  STATE  PEOHIBITIONS.  247 

§  1.  Slaves  were  merely  things  in  contemplation  of  the  laws  by 
-wliicb  they  were  held  in  bondage  in  the  States.  Yet  there  were 
these  exceptions  to  this  definition :  they  were  capable  of  committing 
crimes,  and  were  punishable  therefor  ;  and  they  were  counted  at  the 
rate  of  five  for  three  in  enumerating  the  representative  population  of 
the  States.  They  were  subject  to  sale  like  other  personal  property. 
They  could  not  take  property  by  descent  or  purchase,  and  whatever 
they  had  belonged  to  their  owners.  They  could  make  no  lawful 
contracts,  had  no  civil  rights,  and  might  bo  sold  on  execution  for  the 
payment  of  the  master's  debts. 

§  2.  As  long  as  slavery  existed  in  this  country,  it  was  a  State  in- 
stitution, not  national.  At  the  time  of  the  adoption  of  the  Con- 
stitution, there  were  thirteen  States,  in  twelve  of  which  slavery 
existed.  The  authors  of  the  Constitution  recognized  this  condition 
of  things,  and  did  not  propose  to  interfere  with  it  in  any  manner 
whatever,  except  to  bring  the  foreign  slave-trade  under  the  control 
of  Congress  from  and  after  the  year  1808.  Congress  could  not 
interfere  with  it  in  the  States ;  and,  when  abolished,  it  had  to  be  done 
by  an  amendment  to  the  Constitution. 

§  3.  In  1G20,  a  Dutch  vessel  brought  a  cargo  of  slaves  from 
Africa  to  Virginia ;  and  this  was  the  beginning  of  slavery  among 
the  English  Colonies  on  this  continent.  It  existed  along  the  banks 
of  the  Hudson  as  early  as  1G26.  Slavery  is  mentioned  in  the 
Massachusetts  laws  between  1630  and  1641.  Domestic  slaveiy 
having  thus  commenced,  it  continued  to  increase  throughout  the 
United  States  while  they  were  yet  Colonies  of  Great  Britain.  It 
continued  to  exist  among  all  the  Southern  States  until  it  was  abol- 
ished by  the  Constitutional  Amendment  of  1865.  It  had  already 
become  extinct  in  the  Eastern  and  Northern  States. 

§  4.  In  Pennsylvania,  by  an  act  of  March  1,  1780,  and  in  New 
Jersey,  by  acts  of  Feb.  14,  1784,  and  Feb.  24,  1820,  passed  for 
the  gradual  extinction  of  slavery,  it  was  removed  from  them ;  and 
all  children  born  of  slave-parents  after  the  4th  of  July,  1804,  were 
declared  free.  In  Massachusetts,  it  was  judicially  declared,  so6n 
after  the  Revolutionary  War,  that  slavery  waa  virtually  abolished 


248  ANALYSIS  OF   CIVIL   GOVERNMENT.      [Part  II. 

by  their  constitution,  and  that  the  children  of  female  slaves,  though 
born  prior  to  their  constitution,  and  as  early  as  1773,  were  born 
free. 

§  5.  In  Connecticut,  statutes  were  passed  in  1784  and  in  1797, 
which  gradually  extinguished  slavery  in  that  State.  In  1830,  there 
were  but  twenty-five  slaves  in  Connecticut.  In  Rhode  Island,  no' 
person  could  be  born  a  slave  after  March  1, 1774.  In  New  Hamp- 
shire and  Vermont,  slavery  was  abolished  by  their  respective  con- 
stitutions. It  was  incorporated  into  the  ordinance  of  Congress, 
July  13,  1787,  for  the  government  of  the  territory  of  the  United 
States  north-west  of  the  River  Ohio,  that  there  should  be  neither 
slavery  nor  involuntary  servitude  in  the  said  territory,  otherwise 
than  for  the  punishment  of  crimes.-^ 

§  6.  March  6,  1820,  an  act  of  Congress  was  passed,  known  as 
the  Missouri  Compromise,  being  one  of  the  conditions  on  which 
Missouri  was  admitted  into  the  Union  as  a  slaveholding  State.  By 
this  act,  *'  all  that  territory  ceded  by  France  to  the  United  States, 
under  the  name  of  Louisiana,  which  lies  north  of  thirty-six  degrees 
and  thirty  minutes  north  latitude,  nob  included  within  the  limits  of 
Missouri,  was  to  be  free  territory."  In  May,  1854,  this  compro- 
mise was  substantially  repealed. 

§  7.  Down  to  1850,  the  city  of  Washington  was  an  extensive 
slave-market.  Slaveholders  from  all  parts  of  the  slaveholding 
States  came  there  for  the  purpose  of  buying  or  selling  slaves. 
Sept.  20,  1850,  an  act  of  Congress  was  passed  prohibiting  the  traffic 
in  slaves  within  the  limits  of  the  District  of  Columbia.  April  16, 
1862,  slavery  was  wholly  abolished  within  the  District  of  Columbia; 
and,  by  the  same  act,  it  was  abolished  throughout  the  territories 
belonging  at  that  time  to  the  United  States,  and  which  might 
thereafter  be  acquired  by  them.  The  next  great  move  was  the 
amendment  to  the  Constitution,  which  is  the  subject  of  this  article, 
prohibiting  the  States  and  Territories  within  the  United  States  from 
giving  sanction  to  this  institution.  The  final  downfall  of  American 
slavery  dates  from  the  year  of  our  Lord  1865. 

1  Kent's  Com.,  Lect.  32,  and  notes. 


Part  II.]  PERSONAL  BIGHTS.  249 

CHAPTER   XI. 

PERSONAL    RIGHTS. 

ART.  I.  — DOMICILE. 

1.  JSTo  soldier  shall,  in  time  of  peace,  he  quartered  in  any 

house  without  the  consent  of  the  oioner  ;  nor, 

2.  In  time  of  war,  but  in  a  manner  to  be  prescribed  by  law. 

85. 

§  1.  The  place  most  sacred  to  every  citizen  is  that  one  which  he 
calls  his  home.  In  the  language  of  the  law-books,  a  man's  house  is 
his  castle.  The  enjoyment  of  it,  uninterrupted,  is  among  the  most 
sacred  of  personal  rights.  Arbitrary  mlers,  even  in  time  of  peace, 
are  prone  to  trespass  on  this  right,  and  in  the  very  mode  here  for- 
bidden. The  complaint  is  made  in  the  Declaration  of  Independence, 
that  the  King  of  Great  Britain  has  been  guilty  of  quartering  largo 
bodies  of  armed  troops  among  us. 

§  2.  But  it  may  sometimes  be  necessary,  not  only  for  the  protec- 
tion of  particular  localities  and  districts,  but  perhaps  for  the  pro- 
tection of  individual  dwellings,  that  troops  shall  thus  be  temporarily 
quartered  in  time  of  war.  This  would  not  be  regarded  as  an 
encroachment,  however,  by  any  reasonable  man,  but  rather  as 
cause  for  gratitude  to  his  country.  That  this  right  may  not  be 
abused  by  government  officials,  it  must  be  done  strictly  according  to 
law  in  such  case  made  and  provided. 

ART.  II.  —  SECURITY. 

1.  The  right  of  the  people  to  be  secure  in  their  persons,  houses, 

papers,  and  effects,  acjainst  unreasonable  searches  and 
siezures,  shall  not  be  violated. 

2.  N'o  warrant  shall  issue  but  upon  probable  cause,  supported 

by  oath  or  affirmation, 

\st.  Particularly  describing  the  place  to  be  searched ; 

and, 
2d.   The  person  or  thitigs  to  be  seized.   86. 
This  article  is  substantially  an  affirmation  of  a  well-known  prin- 
oiple  of  the  common  law.     It  had  been  the  doctrine  for  ages  before 


250  ANALYSIS   OF  CIVIL  GOVERNMENT.     [Part  II. 

this  amendment  was  attached  to  the  Constitution ;  but  it  was  so  fre- 
quently viohated  to  suit  the  caprice  of  rulers  and  their  pliant  officials, 
that  it  had  become  reduced  to  a  mere  parchment  theory.  The 
requu'ements  of  this  amendment  are  of  the  most  reasonable  charac- 
ter. Any  thing  less  would  be  inconsistent  with  American  liberty. 
No  warrant  of  a  general  character  can  be  issued ;  or,  if  issued,  it 
would  be  powerless  for  the  arrest  of  a  citizen,  or  for  the  seizure  of 
his  property.  To  be  valid,  it  must  specify  with  reasonable  certainty 
the  person  or  persons  to  be  apprehended,  or  the  things  to  be  seized ; 
and  the  warrant  must  be  supported  by  oath  or  affirmation,  so  that, 
if  false,  the  person  at  whose  instance  it  is  issued  may  be  indicted 
and  convicted  of  perjury. 


ART.  III.  — JUDICIAL. 

1.  No  person  shall  he  held  to  answer  for  a  capital  or  other- 

wise infamous  crime,  unless  on  a  presentment  or  in- 
dictment of  a  grand  jury^  except  in  cases  arising^ 

\st.  In  the  land  or  naval  forces  ;  or, 

2(/.  In  the  militia,  when  in  actual  service  in  time  of 
war  or  public  danger. 

2.  No  person  shall  he  suhject  for  the  same  offense  to  he  twice 

put  in  jeopardy  of  life  and  limh. 

3.  No   one  shall  he  deprived  of  life,  liherty,  or  property, 

without  due  process  of  law. 

4.  Private  property  shall  not  he  talcen  for  puhlic  use  without 

just  compensation.  87. 

§  1.  A  capital  crime  is  one  that  subjects  the  offender  to  the  pen- 
alty of  death.  An  infamous  crime  is  one  that  exposes  the  criminal 
to  the  abhorrence  and  detestation  of  mankind,  and  to  ignominious 
punishment  more  or  less  severe.  These  crimes  and  punishments  are 
of  such  grave  character,  that  before  a  person  shall  be  exposed  even 
to  a  trial  for  the  one,  or  a  liability  to  the  other,  the  most  careful  and 
deliberate  steps  must  be  taken.  He  must  first  be  indicted  by  a 
grand  jury. 

§  2.  An  indictment  is  a  wiitten  accusation  or  a  formal  charge 


Part  IL]  PERSONAL  RIGHTS.  251 

made  against  a  person  for  the  commission  of  a  crime,  and  is  made 
by  a  grand  jury  on  oath.  The  proceedings  of  the  grand  jury  are 
usually  secret ;  the  party  accused  not  being  called  on  to  defend  him- 
self before  them,  nor  even  allowed  the  opportunity  to  do  so.  If 
they  find  a  bill  of  indictment  against  him,  they  deliver  it  to  the 
court  under  whose  jurisdiction  they  are  acting,  when  a  warrant  is 
issued  for  the  arrest  of  the  person  so  indicted.  Before  the  court,  he 
has  an  opportunity  to  defend  himself  on  trial.  A  grand  jury  is  a 
body  of  men,  twenty-three  in  number,  selected,  according  to  the 
forms  of  law,  to  inquire  in  behalf  of  the  people  into  the  commission 
of  any  crimes  within  their  county  or  district. 

§  3.  In  the  proceedings  before  a  grand  jury,  witnesses  are  called 
by  the  attorney  who  acts  for  the  people,  and  these  witnesses  testify 
as  to  what  they  know  in  reference  to  the  grounds  of  any  accusations 
which  may  be  brought  before  the  jury  against  any  person.  The 
prosecuting  attorney  draws  the  indictment  according  to  the  forms  of 
law ;  and  if  twelve  of  the  grand  jury,  after  hearing  the  testimony, 
think  there  is  sufficient  evidence  against  the  party  accused  to  put 
him  on  his  trial,  the  foreman  of  the  jury  indorses  on  the  biU  of 
indictment  the  words,  "  A  true  bill,"  and  signs  his  name  under 
the  indorsement. 

§  4.  If  crimes  are  committed  in  the  army  or  navy,  or  in  the 
militia,  when  in  actual  service  in  time  of  war  or  public  danger,  there 
is  another  method  of  trying  the  criminal.  It  is  done  by  court-mar- 
tial, or  by  military  commission,  without  going  through  with  the  for- 
malities of  an  indictment. 

§  5.  A  person  having  been  once  tried  for  a  crime,  whether  found 
guilty  or  not  guilty,  if  the  juiy  agree  on  a  verdict  at  all,  can  not  be 
put  on  his  trial  a  second  time  for  the  same  offense.  But  this  state- 
ment must  be  taken  with  the  qualification  that  the  accused  does  not 
himself  apply  for  a  new  trial.  If  he  applies  for  a  new  trial,  and  ob- 
tains it,  in  contemplation  of  law,  the  new  trial  is  but  a  continuation 
of  the  original  proceeding .  so  a  second  trial  on  the  same  indict- 
ment, where  the  jury  fails  to  agree  on  the  first  trial,  is  but  a  continue 
ation  of  the  trial. 

§  6.  Without  due  process  of  law,  no  person  shall  be  deprived  of 


2.52  ANALYSIS  OF   CIVIL  GOVERNMENT.      [Part  II. 

life,  liberty,  or  property.  The  firat  object  of  human  government  is 
protection  of  the  citizen.  This  clause  is  inserted  for  the  purpose  of 
giving  assurance  that  life,  liberty,  and  property  shall  be  held  sacred 
in  the  eye  of  the  law,  and  that  the  citizen  shall  not  be  deprived  of 
either  except  through  all  the  forms  and  substance  of  the  regular 
administration  of  justice. 

§  7-  But  the  public  good,  which  is  always  paramount  to  private 
interest,  often  requires  the  appropriation  of  private  property  for  the 
ends  of  government,  or  for  the  greater  good  of  the  greater  number. 
Where  the  public  interests  rec^uire  it,  private  property  may  be  taken 
by  rendering  a  just  compensation.  What  is  just  compensation  in 
such  cases  is  to  be  ascertained  by  such  process  of  investigation  as 
shall  be  fixed  by  law.  It  may  be  necessary  to  project  a  railroad,  a 
military  road,  or  to  construct  a  canal ;  or  it  may  become  necessary 
to  appropriate  private  property  for  the  support  of  an  army.  This 
may  be  done  by  authority  of  law,  but  not  without  just  compensa- 
tion to  the  owner  of  the  property. 


ART.  IV.  — CRIMIJ^AL  ACTIONS. 

In  all  criminal  prosecutions ,  — 

1.  Accusation.  —  The  accused  shall  he  informed  of  the  na^ 

ture  and  cause  of  the  accusation. 

2.  Trial  by  Jury.  —  He  shall  enjoy  the  right  to  a  speedy  and 

public  trial, 

1st.  By  an  impartial  jury. 

2d.   The  jury   shall    be   of  the   State  and  district 

loherein  the  crime  shall  have  been  committed. 
8c?.   The  district  shall  have  been  previously  ascertained 

by  law.  8^. 

3.  Witnesses.  —  1.  JVo  one  shall  be  compelled  to  be  a  witness 

against  himself.   87. 

2df  Me  shall  have  compulsory  process  for  obtaining 

loitnesses  in  his  favor. 
3d,  JSe  shall  be  confronted  by  the  witnesses  against 
him.  88. 


PaetII.]  PEKSONAL  KIGHTS.  253 

4.  Counsel.  —  He  shall  have  the  assistance  of  counsel  for 

his  deferise.   88. 

5.  Bail.  —  Excessive  hail  shall  not  be  required. 

6.  Fines.  —  Excessive  fines  sJicdl  not  be  imjyosed. 

7.  Punishments.  —  Cruel  and  unusual  punishments  shall  not 

be  inflicted.   90, 

§  1.  In  this  article  is  an  outline  of  the  rights  of  a  party  on  trial 
for  a  criminal  oflfense.  In  the  first  place,  he  is  to  be  informed  of 
the  nature  and  cause  of  the  accusation  against  him.  This  appears  in 
the  indictment,  which  is  a  written  accusation  made  by  the  grand  jury, 
on  oath,  at  the  suit  of  the  government.  The  indictment  must 
charge  the  time,  place,  and  nature  and  circumstances  of  the  ofiense 
with  clearness  and  certainty ;  giving  the  accused  full  and  definite 
notice  of  the  charge,  so  that  he  may  make  his  defense  with  all 
reasonable  knowledge  and  to  the  best  of  his  ability. 

§  2.  The  trial  shall  be  speedy ;  that  is,  there  shall  be  no  unneces- 
sary delay.  This  is  for  the  convenience  of  the  accused.  Long 
delays  may  cause  difiiculty  in  obtaining  witnesses,  who  may  become 
scattered  over  the  country,  and  located  at  remote  points ;  and  the  pris- 
oner may  find  it  difficult  to  procure  bail,  and  thus  be  subjected  to 
protracted  imprisonment  waiting  for  his  trial.  The  trial  must  be 
public,  thereby  insuring  fairness  and  impartiality,  as  the  proceedings 
are  open  to  the  inspection  and  criticisms  of  the  community. 

§  3.  And  the  trial  is  by  jury.  This  does  not  mean  the  grand 
jury,  but  another,  called  a  petit  jury,  consisting  of  twelve  good  and 
lawful  men,  against  whom,  and  each  of  whom,  no  valid  and  legal 
objection  can  be  raised.  This  jury  must  be  impartial ;  that  is,  it 
must  be  constituted  of  persons  who  have  not  already  made  up  their 
minds  on  the  guilt  or  innocence  of  the  party  accused.  The  grand 
juiy  accuses  the  party  implicated  :  the  petit  jury  tries  the  accusa- 
tion; and,  in  order  to  convict  the  accused,  there  must  be  entire 
unanimity  of  the  pstit  jury  in  favor  of  his  guilt. 

§  4.  The  jury  shall  be  selected  from'the  State  or  district  in  which 
the  crime  shall  have  been  committed :  and  the  district  shall  have 
been  previously  ascertained  by  law  ;  that  is,  the  district  must  have 
been  previously  determined  by  law.     When  we  come  to  a  discussion 


254  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  U. 

of  the  judiciaiy  of  the  United  States,  we  shall  see  that  the  States 
are  divided,  for  convenience,  into  circuits  and  districts  by  act  of 
Congress.  The  selection  of  the  jury  from  the  State  or  district  in 
which  the  crime  is  committed  is  supposed  to  secure  fairness  and 
impartiality  on  the  trial. 

§  5.  By  our  Constitution,  a  man  can  not  he  compelled  to  testify 
against  himself;  and  this  is  in  affirmance  of  a  well-settled  principle 
of  common  law.  It  is  wjbU  known  that  in  some  countries  not  only 
are  criminals  compelled  to  give  evidence  against  themselves,  hut  are 
subjected  to  the  rack  or  torture  in  order  to  procure  a  confession  of 
guilt ;  presuming  that  innocence  would  vindicate  itself  by  a  stout 
resistance,  or  that  guilt  would  make  open  confession  :  as  if  a  man's 
innocence  were  to  be  tried  by  the  hardness  of  his  constitution,  and 
his  guilt  by  the  sensibility  of  his  nerves  !  ^ 

§  6.  To  secure  impartiality  of  trial,  and  to  give  a  fair  opportunity 
of  defense,  the  accused  shall  have  compulsory  process  for  obtaining 
witnesses  in  his  favor.  Several  centuries  since,  among  the  nations 
of  Europe,  the  practice  in  criminal  trials  was  to  deny  the  accused 
the  liberty  of  having  witnesses  to  testify  in  his  favor.  Afterwards, 
the  rigor  of  this  tyrannical  rule  was  so  modified  as  to  allow  wit- 
nesses to  testify  in  favor  of  the  accused,  but  not  under  oath  ;  thus 
weakening  their  credibility.  The  practice  now,  however,  is  general 
to  allow  the  accused  to,  make  as  full  and  complete  a  defense  as  in 
his  power.  Under  our  Constitution,  if  the  accused  is  destitute  of 
the  means  of  procuring  the  attendance  of  witnesses  in  his  favor,  he 
may  have  compulsory  process  for  this  purpose,  even  at  the  expense 
of  the  government. 

§  7.  He  shall  be  confronted  by  the  witnesses  against  him.  The 
accused  and  all  witnesses  appear  face  to  face  in  open  court.  If  a 
witness  is  of  a  coiTupt  and  mercenary  disposition,  this  salutary  pro- 
vision may  have  a  tendency  to  check  his  recklessness  in  giving  tes- 
timony. 

§  8.  The  accused  shall  have  the  assistance  of  counsel  for  his  de- 
fense. By  counsel  is  meant  a  professional  lawyer,  attorney,  or 
advocate.     To  an  American  citizen,  accustomed  to  seeing  nearly 

1  Black.  Comm.,  vol.  iv.  p.  326. 


Pa£T  II.]  PERSONAL  RIGHTS.  255 

every  cause  in  court,  civil  and  criminal,  in  the  hands  and  under  the 
direction  of  attorneys,  it  seems  almost  needless  that  such  a  clause  as 
this  should  be  made  a  constitutional  provision.  But,  in  capital  cases 
at  common  law,  the  prisoner  was  denied  this  right  unless  some  matter 
of  law  should  arise  proper  to  be  debated.  He  could  not  have  the 
benefit  of  professional  assistance  in  the  examination  of  witnesses, 
or  in  making  his  defense  before  the  jury. 

§  9.  It  was  not  until  the  year  1836  that  prisoners  were  allowed 
to  be  defended  by  counsel  in  England,  except  in  cases  of  treason, 
which  is  the  gravest  of  crimes,  and  misdemeanors  which  are  among 
the  minor  offenses.  Under  our  Constitution,  and  most  of  the  State 
Constitutions,  if  the  accused  is  unable  to  employ  counsel  for  want 
of  means,  counsel  is  assigned  him  by  the  court :  so  careful  is  the 
law  in  this  country  of  the  rights  of  an  American  citizen. 

§  10.  Excessive  bail  is  forbidden.  The  meaning  of  the  word  ' '  bail  '* 
in  law  is  to  set  free,  liberate,  deliver  from  arrest,  or  out  of  custody,  to 
the  keeping  of  other  persons,  on  their  undertaking  to  be  responsible 
for  the  appearance,  at  a  certain  day  and  place,  of  the  person  bailed. 
He  who  becoraas  surety  for  the  appearance  of  another  at  court  is 
called  the  bailor  :  he  who  is  bailed  is  called  the  bailee.  The  writing 
given  in  such  cases  is  called  the  bail-bon  1.  The  bailor  promises  in 
the  bond  to  pay  a  certain  sum  of  money  therein  named  if  the  bailee 
shall  fail  to  appear  as  therein  specified. 

§  11.  A  person  accused  of  a  crime  punishable  by  death  is  not 
usually  bailable  :  the  only  cases  of  this  kind  where  bail  is  taken 
are  those  in  which  the  proof  of  guilt  is  slight.  All  other  crimes, 
except  those  punishable  capitally,  are  bailable.  But  intriguing,  op- 
pressive magistrates  have  sometuaies,  in  other  countries,  required 
enormous  bail,  or  bail  in  excessive  and  enormous  sums.  Bail,  being 
merely  surety  that  the  accused  will  appear  before  the  court,  and  stand 
his  trial  and  its  consequences,  should  not  be  excessive ;  and  our  Con- 
stitution wisely  and  humanely  forbids  it. 

§  12.  Excessive  fines  are  likewise  forbidden.  A  fine  is  a  pecu- 
niary penalty  imposed  by  a  court  upon  a  person  for  a  criminal  offense, 
or  breach  of  law.  The  fine  is  imposed  after  trial  and  conviction. 
A  malignant  and  vindictive  magistrate  might  impose  cruel  and  ex- 


256  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  H. 

cessivo  fines,  as  the  history  of  criminivl  jurisprudendd  in  other  coun- 
tries proves,  were  it  not  for  this  constitutional  prohibition. 

§  13.  Nor  shall  cruel  and  unusual  punishments  be  inflicted. 
This  needs  no  comment,  except  the  remark  that  history  shows  that 
despots  in  the  dark  ages  taxed  their  fiendish  ingenuity  to  invent 
punishments  the  most  horrid,  cruel,  and  revolting.  And  this  pro- 
hibition is  for  the  purpose  of  avoiding  all  possibility  of  a  repetition 
of  such  cruelties  in  this  country. 

ART.  v.— CIVIL  ACTIONS. 

In  all  cases  at  common  law  wherein  the  value  in  controversy 
shall  exceed  twenty  dollars, 

1.  The  right  of  trial  by  jury  shall  be  preserved. 

2.  No  fact  tried  by  a  jury  shall  be  otherwise  re-examined  in 

any  court  of  the  United  States  than  according  to  the 
rules  of  the  common  law.  80, 
§  1.  The  common  law   includes   those  principles,   usages,   and 
rules  of  action,  applicable  to  the  government  and  security  of  person 
and  property,  which  do  not  rest  for  their  authority  upon  any  express 
and  positive  declaration  of  the  will  of  the  legislature.     It  grew  into 
use  among  our  English  ancestry  by  gradual  adoption  ;  receiving  from 
time  to  time  the  sanction  of  the  courts  of  justice,  without  any  legis- 
lative act  or  interference.     It  was  the  application  of  the  dictates  of 
natural  justice  and  of  cultivated  reason  to  particular  cases. 
A  statute  law  is  the  will  of  the  legislature  in  writing.^ 
§  2.  In  paragraph  68  of  the  Constitution,  provision  is  made  for 
the  trial  of  criminal  cases  by  jury ;  but  nothing  is  said  there  or 
elsewhere  in  that  instrument,  as  it  came  from  the  hands  of  its 
authors,  about  trial  by  jury  in  civil  cases.     Those  who  assailed  the 
Constitution  when  it  was  before  the  people  for  ratification   claimed 
that  this  omission  was  intended  to  and  did  abolish  trial  by  jury  in 
civil  cases.     Hence  this  amendment  was  adopted  at  an  early  day, 
which  put  the  matter  at  rest.     This  amendment,  however,  refers 
only  to  cases  in  the  common-law  courts,  not  to  courts  of  admiralty 

1  Kent's  Coram.,  Lect.  21. 


Part  II.]  PERSO]SAL  BIGHTS.  257 

and  maritime  jurisdiction,  nor  to  cases  of.  equity,  in  wliich  the  courts 
determine  both  the  law  and  the  fa<?t.  If  the  matter  in  controversy 
be  less  than  twenty  dollars,  a  jury  trial  can  not  be  claimed,  being  a 
matter  of  too  little  importance  to  warrant  the  expense  of  a  jury  trial. 
§  3.  When  a  matter  in  contpoversy  has  once  been  fairly  adjudi- 
cated, that  adjudication  is  a  bar  to  any  further  judicial  examination 
or  proceedings,  except  according  to  the  forms  and  usages  of  the  com- 
mon law.  There  must  be  an  end  somewhere  to  human  controversy, 
and  that  end  must  be  determined  by  legal  principles  and  usage. 
The  rules  of  common  law  here  spoken  of,  under  which  matters  of 
fact  may  be  re-examined,  refer  to  a  continuation  of  the  investiga- 
tion by  a  successful  motion  for  a  new  trial,  on  cause  shown,  or  by 
writ  of  errer,  or  by  an  appeal  to  another  and  higher  tribunal.  The 
parties  have  the  right  to  exhaust  all  legal  remedies  before  the  contro- 
versy is  to  be  considered  as  judicially  settled ;  bul  these  remedies 
must  be  pursued  according  to  common-law  usage. 

ART.  VI.  — TREASON. 

1.  Definition.  —  Treason   against  the    United  States   shall 

consist^ 

\st.  In  levying  tear  against  them  ;  or^ 
2d.  In  adhering  to  their  enemies,  giving  them  aid 
and  co7nfort. 

2.  Conviction.  —  JVo  person  shall  he  convicted  of  treason 

unless, 

1st.   On  the  testimony  of  two  witnesses  to  the  same 

overt  act ;  or, 
2d.  On  confession  in  open  court.  69. 
§  1.  Under  the  common  law  of  England,  and  under  an  old  Eng- 
lish statute  as  far  back  as  the  time  of  Edward  III.,  there  were 
seven  distinct  crimes  that  came  under  the  head  of  treason.  To 
imagine  the  king's  death,  to  counterfeit  the  king's  seal,  or  to  coun- 
terfeit the  king's  coin,  was  treason.  The  English  jurists  were  some- 
times puzzled  to  determine  precisely  what  was  treason. 

§  2.  The   Constitution  of   the  United  States,   therefore,  wisely 
gives  a  concise  definition  of  this  crime  as  against  the  General  Gov- 


258  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 

emment.  Our  Constitution  recognizes  no  such  offense  as  construe" 
tive  treason,  as  was  the  case  with  the  ancient  common  law  of  Eng- 
land. There  are  but  two  ways  that  treason  can  he  committed 
against  the  United  States,  and  these  are  defined  with  such  precision 
as  to  leave  no  room  for  cavil  or  doubt.  Levying  war  against  the 
United  States,  or  adhering  to  their  enemies,  giving  them  aid  and 
comfort,  is  treason. 

§  3.  Very  early  in  our  history,  the  Supreme  Court  of  the  United 
States  had  occasion  to  define  what  is  to  be  understood  by  the  phrase, 
"levying  war."  On  that  occasion,  the  court  ?aid,  *'  However  flagi- 
tious may  be  the  crime  of  conspiring  to  subvert  by  force  the  govern- 
ment of  our  country,  such  conspiracy  is  not  treason.  To  conspire 
to  levy  war,  and  actually  to  levy  war,  are  distinct  offenses.  The 
first  (levying  war)  must  be  brought  into  open  action  by  the  assem- 
blage of  men  for  a  purpose  treasonable  in  itself,  or  the  fact  of  levy- 
ing war  can  not  have  been  committed. 

§  4.  "  It  is  not  the  intention  of  the  court  to  say  that  no  individual 
can  be  guilty  of  this  crime  who  has  not  appeared  in  arms  against 
his  country.  On  the  contrary,  if  war  be  actually  levied,  that  is,  if 
a  body  of  men  be  actually  assembled  for  the  purpose  of  effecting  by 
force  a  treasonable  purpose,  all  those  who  perform  any  part,  however 
minute,  or  however  remote  from  the  scene  of  action,  and  who  are 
actually  leagued  in  the  general  conspiracy,  are  to  be  considered  as 
traitors ;  but  there  must  be  an  actual  assembUng  of  men  for  the 
treasonable  purpose  to  constitute  a  levying  of  war." 

§  5.  The  Constitution  is  humane  to  the  accused,  in  requiring  the 
strictest  proof  for  the  establishment  of  his  guilt.  There  must  be 
two  witnesses,  at  least,  to  the  same  overt  act,  unless  the  prisoner 
make  confession  in  open  court.  Confessions  out  of  court,  though 
testified  to  by  any  number  of  witnesses,  are  not  sufficient.  Confes- 
sions (out  of  court)  are  said  to  be  the  weakest  and  most  suspicious 
of  all  testimony ;  ever  liable  to  be  obtained  by  artifice,  false  hopes, 
promises  of  favor,  or  menaces;  seldom  remembered  accurately  or 
reported  with  due  precision,  and  incapable  in  their  nature  of  being 
disproved  by  other  negative  evidence.^     There  must,  as  there  should, 

1  Black.  Coram.,  4  v.,  357. 


Part  II.]  PERSONAL  RIGHTS.  259 

be  a  concurrence  of  two  witnesses  to  the  same  overt  act,  that  is, 
open  act  of  treason,  who  are  above  all  reasonable  exception.^ 

The  power  of  Congress  to  declare  the  punishment  of  treason  was 
noticed  in  Chap.  IV.,  Art.  IV.,  Part  II. 

ART.  VII.  — OFFICIAL   IMMUNITIES. 

Freedom. 

1.  From  Arrest.  —  Members  of  Congress  shall  in  all  cases, 

except  treason,  felony,  and  breach  of  the  peace,  be 
primleged  from  arrest, 

\st.  During  attendance  at  their  respective  houses; 

2d.   W7iile  going  to  and  returning  from  the  same, 

2.  Of  Speech.  —  For  any  speech  or  debate  in  either  house, 

they  shall  not  be  questioned  in  any  other  place.  31  • 
§  1.  Although  freedom  from  arrest  is  here  classed  under  the  title 
of  •'  Personal  Rights,"  as  it  relates  to  members  of  Congress,  jet  it 
is  as  much  the  right  of  their  constituencies,  and  of  the  houses  of 
which  they  are  members,  as  it  is  the  right  of  the  members  themselves. 
It  is  an  official  immunity.  It  is  a  right  universally  accorded  to 
members  of  legislative  bodies  in  all  counti-ies,  and  in  all  the  States 
of  this  Union.  They  can  be  arrested  for  crime  only.  Blackstone 
says,  "It  has  immemorlally  constituted  a  privilege  of  both  houses 
of  the  British  Parliament." 

§  2.  Thomas  Jefferson  says,  "It  seems  absolutely  indispensable 
for  the  just  exercise  of  the  legislative  power  in  every  nation  purport- 
ing to  possess  a  free  Constitution  of  government ;  and  it  can  not  be 
surrendered  without  endangering  the  pubhc  liberties  as  well  as  the 
private  independence  of  the  members."  Of  course,  an  arrest  of  a 
member  of  Congress  would  prevent  the  performance  of  his  duties  in 
the  house  of  which  he  was  a  member.  His  constituency  would  bo* 
left  without  representation.  The  public  interests,  which  are  always 
considered  paramount  to  private,  must  suffer  for  want  of  attention. 
The  privilege  is  considered  not  that  of  the  member  or  of  his  con- 
stituents only,  but  a  privilege  of  the  house  also. 

1  Story  on  Const.,  §  1,802. 


260  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 

§  3.  And,  for  the  purpose  of  securing  entire  freedom  of  discussion, 
no  member  of  either  house  can  legally  be  questioned  elsewhere  for 
any  thing  which  he  may  see  fit  to  utter  in  debate  in  his  place  as  a 
member ;  that  is,  he  can  not  legally  be  called  to  account  before  the 
courts,  no  matter  how  much  he  may  slander  private  character.  Of 
course,  this  is  a  right  which  may  be,  and  sometimes  is,  abused.  But 
the  public  interests  may  require  the  most  critical  and  searching 
examinations  into  personal  and  official  qualifications  of  individuals 
proposed  as  candidates  for  public  stations  of  grave  responsibility. 
Members  should  be  allowed  to  perform  these  duties  without  fear  of 
future  personal  retribution. 


CHAPTER  XII. 

EXECUTIVE  DEPARTMENT. 

ART.  I.  — IN  WHOM  VESTED. 

In  a  President  of  the  United  States  of  America.  53. 

§  1.  Under  the  Confederation,  there  was  no  such  officer  as  a 
President  of  the  United  States.  There  was  an  Executive  Committee 
of  thirteen,  one  from  each  State,  having  no  power  except  during 
the  recesses  of  Congress.  Congress  possessed  the  executive  power 
while  in  session.  Alexander  Hamilton  says  in  "  The  Federalist,'' 
*'  There  is  hardly  any  part  of  the  system  [of  government],  the 
arrangement  of  which  could  have  been  attended  with  greater  diffi- 
culty ;  and  there  is  none  which  has  been  inveighed  against  with  less 
candor,  or  criticised  with  less  judgment."  These  remarks  were 
made  while  the  Constitution  was  before  the  people  for  deliberation. 

§  2.  Energy  in  the  Executive  is  one  indispensable  characteristic 
in  the  definition  of  good  government ;  for  the  duty  of  this  depart- 
ment is  to  see  that  the  laws  are  faithfully  and  promptly  executed. 
A  feeble  Executive  implies  a  feeble  execution  of  the  government. 
A  feeble  execution  is  but  another  phrase  for  a  bad  execution  ;  and 
a  government  ill  executed,  whatever  it  may  be  in  theory,  must  be  a 
bad  government  in  practice.^ 

"    .t  :  •>  .  .K"  •  1  peje^.^iist,  No.  72. 


Part  II.]  executive  department.  261 

§  3.  It  was  a  subject  of  much  and  earnest  debate  in  the  Conven- 
tion that  formed  the  Constitution,  whether  this  department  should  be 
placed  in  the  hands  of  one,  or  in  the  hands  of  several.  No  subject 
wa3  more  thoroughly  discussed  in  that  body.  It  was  maintained  that 
energy  would  be  most  hkely  to  be  secured  by  unity  of  executive,  and 
that  wisdom  would  be  most  likely  to  be  secured  by  a  plurality ;  and 
that  the  latter  would  be  most  hkely  to  command  the  confidence  of 
the  people. 

§  4.  As  the  executive  prerogative  is  limited  to  the  faithful  execu- 
tion of  the  laws  after  they  shall  have  been  duly  enacted  and  pro- 
mulgated, it  was  doubtless  most  judicious  that  the  executive  power 
should  be  vested  in  a  single  individual.  It  gives  a  stronger  sense 
of  personal  responsibility.  No  discretion  is  submitted  to  the  execu- 
tive officer  as  to  the  wisdom  or  expediency  of  the  law.  What  has 
once  been  declared  to  be  law,  under  all  the  cautious  forms  of  delib- 
eration prescribed  by  the  Constitution,  ought  to  receive  prompt 
obedience.^ 

ART.  ir.-TERM. 

He  shall  hold  his  office  during  the  term  of  four  years.   ^3. 

§  1.  This  was  a  subject  on  which  there  was  a  great  variety  of 
opinion  in  the  Convention.  There  were  those  who  favored  the  prop- 
osition that  the  Executive  should  hold  his  office  for  life,  or  during 
good  behavior.  At  one  stage  of  the  proceedings,  seven  years  was 
fixed  as  the  duration  of  the  tei-m.  The  term  of  four  years  was 
finally  fixed  upon  as  a  compromise  ;  for  there  were  members  in 
favor  of  one  year,  others  in  favor  of  two,  and  others  three  years. 

§  2.  The  term  of  four  years  is  intermediate  between  the  tenn  of 
office  of  the  Senate  and  that  of  the  House  of  Representatives.  In 
the  course  of  one  presidential  term,  the  House  is,  or  may  be,  twice 
recomposed,  and  two-thirds  of  the  Senate  changed  or  re-elected.^ 
The  executive  term  should  not  be  so  short  as  to  be  constantly 
changing  from  one  incumbent  to  another,  giving  the  government  no 
opportunity  to  test  by  experience  the  policy  of  its  measures ;  nor, 
on  the  other  hand,  should  it  be  so  long  as  to  allow  an  obstinate 

^  Kent's  Comra.,  Lect.  13.  '  Story  on  the  Const.,  §  1,438. 


262  ANALYSIS  OP  CIVIL  GOVERNMENT.     [Part  II. 

and  corrupt  Executive,  should  the  country  unfortunately  be  cursed 
with  one,  to  bring  on  wide-spread  mischief  and  disaster. 

§  3.  The  Presidential  term  commences  on  the  fourth  day  of  March 
next  after  the  President's  election ;  and  in  case  of  his  death,  remov- 
al, or  resignation,  during  his  term,  the  person  who  succeeds  to  the 
duties  of  the  office  serves  the  unexpired  portion  of  the  term  only. 

ART.  III.  —  ELIGIBILITY. 

1.  He  must  have  attained  to  the  age  of  thirty-five  years. 

2.  Must  have  resided  within  the    United  States  fourteen 

years. 

3.  He  shall  be  a  natural-born  citizen  ;  or, 

4.  A  citizen  of  the  United  States  at  the  time  of  the  adop- 

tion of  the  Constitution.  56.  (See  appendix  D.) 
§  1.  The  age  required  was  regarded  as  necessary  to  give  the  can- 
didate for  this  office  sufficient  time  to  demonstrate  his  character,  and 
to  enable  his  fellow-citizens  to  judge  of  his  fitness  for  the  high  posi- 
tion of  chief  executive  of  a  great  nation.  The  mental  faculties  are 
usually  in  full  vigor  at  this  age ;  and  opportunities  must  have  been 
afforded  for  long  public  service,  and  for  varied  and  large  experience 
in  the  public  councils. 

§  2.  Fourteen  years'  residence  in  the  United  States  is  intended 
not  only  to  give  opportunity  for  an  extensive  acquaintance  on  the 
part  of  his  fellow-citizens  with  the  candidate  for  this  office,  but  also 
to  furnish  him  with  the  requisite  knowledge  of  the  wants  and  insti- 
tutions of  the  country.  Besides,  it  may  be  presumed  that  a  citizen 
whose  residence  has  been  chiefly  abroad  may  not  only  be  deficient 
in  affection  for  his  own  country,  but  may  have  become  partial  to 
the  institutions  of  other  countries  with  which  he  has  long  been 
familiar. 

§  3.  The  Constitution  requires  that  the  President  shall  be  a 
natural-born  citizen  of  the  United  States,  or  a  citizen  at  the  time  of 
the  adoption  of  the  Constitution.  This  is  an  important  restriction, 
when  we  consider  the  sacredness  of  the  trust  committed  to  the 
charge  of  the  Executive.  It  will  be  useless  for  ambitious  foreigners 
to  intrigue  for  the  office,  as  this  qualification   of  birth  cuts  off  all 


Part  II.]  executive  department.  263 

those  inducements  from  abroad,  to  corruption,  negotiation,  and  war, 
which  have  frequently  and  fatally  harassed  the  elective  monarchies 
of  other  countiies.^ 

§  4.  But,  through  the  bloody  straggle  of  the  American  Revolu- 
tion, our  fathers  were  gi'eatly  assisted  by  the  aid  of  many  citizens 
who  were  natives  of  other  countries.  They  had  espoused  our  cause, 
fouo-ht  and  bled  in  our  interests,  had  become  naturalized  citizens, 
and  had  proved  their  attachments  to  our  institutions  beyond  all  doubt. 
It  would  have  been  ungenerous  and  ungrateful  to  have  excluded 
this  class  of  citizens  from  all  possibility  of  attaining  to  any  office, 
however  exalted,  under  a  government  which  they  had  sacrificed  so 
much  to  establish.  Hence  this  saving  clause  of  the  Constitution, 
that,  if  a  person  was  a  citizen  of  the  United  States  at  the  time  of  the 
adoption  of  that  instrument,  he  became  eligible  to  the  Presidency. 
But,  by  the  lapse  of  time,  this  clause  has  become  practically  obsolete. 

§  5.  The  President  is  eligible  to  re-election  without  limitation : 
thus  far,  however,  there  has  never  been'  a  second  re-election.  In 
the  Constitutional  Convention,  there  was  a  strong  feeling  in  favor  of 
a  provision  prohibiting  a  re-election  ;  but  this  gave  way  when  it  was 
decided  to  lunit  the  term  to  four  years. 

ART.  IV.— ELECTION. 

1.  —  ELECTORS. 

1st.  Each  State  shall  appoint   electors   of  President  and 

Vice-President    in    such    manner  as    the   legislature 

thereof  may  direct. 
2d,  The  number  of  electors  shall  equal  the  number  of  se^ia- 

tors  and  representatives  to  which   the  State  may  be 

entitled  in  Congress.  54. 
§  1.  In  the  Convention  that  formed  the  Constitution,  the  original 
scheme  for  electing  the  President  was  by  the  two  houses  of  Congress, 
or  by  the  National  Legislature,  whether  that  should  be  composed  of 
one  or  two  houses.  This  plan  was  adopted  by  eight  States  for  to 
two  against  it.  Afterwards  it  was  voted  by  six  States  against  three, 
one  being  divided,  to  choose  the  President  by  electors  to  be  appoint- 
ed by  the  several  States. 

1  Kent's  Comm.,  Lcct.  13. 


264  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 

§  2.  It  was  then  decided,  by  eight  States  to  two,  that  the  electors 
should  be  appointed  by  the  legislatures  of  the  several  States.  After 
this,  the  plan  of  electing  the  President  by  Congress  was  restored  by 
a  vote  of  seven  States  against  four.  Subsequently  it  was  again 
changed  to  the  mode  of  electing  by  electors,  by  a  vote  of  nine 
States  against  two.  Leaving  it  to  the  legislature  to  direct  as  to  the 
manner  of  appointing  electors  was  carried  by  a  vote  of  ten  States 
against  one. 

§  3.  The  election  of  the  electors  of  President  and  Vice-President, 
with  a  single  exception,  is  now  confided  to  the  people  of  the  several 
States.^  Thus  the  sense  of  the  people  operates  in  the  choice  of  the 
Chief  Magistrate  with  much  more  certainty  than  it  would  were  the 
choice  of  electors  confided  to  a  pre-existing  body.  The  immediate 
election  of  the  President  and  Vice-President  is  committed  to  men 
chosen  for  that  specific  purpose.  A  small  nurfiber  of  persons  select- 
ed by  their  fellow-citizens  from  the  general  mass  will  be  most  likely 
to  possess  the  information  £tnd  discernment  requisite  to  so  complicat- 
ed an  investigation. 2  We  have  seen  in  Chap.  VII.,  Part  II.,  of 
this  work,  that  no  senator,  representative,  or  other  person  holding  a 
place  of  trust  or  profit  under  the  United  States,  can  be  an  elector  of 
President  and  Vice-President. 

§  4.  The  number  of  electors  corresponds  with  the  number  of 
senators  and  representatives  to  which  the  States  are  respectively  en- 
titled in  Congress.  Thus  each  State  has  about  the  same  influence 
in  the  election  of  President  and  Vice-President  that  it  has  in  the 
national  councils. 

2. -PROCEEDINGS   OF  ELECTORS. 

1st.   They  shall  meet  in  their  respective  States. 

''Id.  They  shall  vote  by  ballot  for  President  and  Vice-Pres- 
ident of  the  United  States^  at  least  one  of  whom  shall 
not  be  an  inhabitant  of  the  same  State  with  themselves. 

3d.   They  shall  name  in  their  ballots. 

1st.   The  person  voted  for  as  President  /  and, 
2d.  The  person  voted  for  as  Vice-President. 

1  In  South  Carolina,  electors  are  elected  by  the  State  legislature. 
*  Federalist,  No.  68. 


Part  II.]  EXECUTIVE  DEPAETMENT.  265 

Ath.   They  shall  make  distinct  lists  of  all  persons  voted  for, 
1st.  As  President ; 

2d,  As  Vice-President ;  and  the  number  of  votes  for 
each. 
6th.  The  electors  shall  sign  and  certify  the  lists. 
Qth.   They  shall  transmit  the  lists  sealed  to  the  seat  of  gov- 
ernment of  the  United  States. 
*Jth.   The  lists  shall  be  directed  to  the  President  of  the  Sen- 
ate.  94. 

§  5.  This  matter  of  the  meeting  of  the  electors  in  their  respective 
States  is  a  mere  matter  of  form.  No  discussion  of  the  merits  of 
the  candidates  for  President  and  Vice-President  takes  place;  and, 
indeed,  none  is  expected.  The  electors  are  chosen  wholly  with 
reference  to  particular  persons  who  have  been  put  in  nomination  at 
a  convention  called  for  that  purpose  ;  and  the  electors  are  pledged  to 
vote  for  these  nominees,  and  are  in  no  sense  at  liberty  to  vote  other- 
wise. The  object  of  appointing  electors  was,  by  the  authors  of  the 
Constitution,  to  give  opportunity  for  deliberation,  and  for  cautiously 
analyzing  the  characters  of  candidates  for  these  high  trusts ;  but 
this  object  has  been  wholly  defeated  by  the  practices  of  the  political 
parties  arrayed  against  each  other. 

§  6.  Hence  the  meeting  of  the  electors,  as  before  stated,  is  a  mere 
matter  of  form.  Nothing  is  left  to  the  electors  but  to  cast  their 
votes  according  to  previous  pledges ;  and  any  exercise  of  an  inde- 
pendent judgment  would  be  treated  as  political  usurpation,  dishonor- 
able to  the  individual,  and  a  fraud  on  his  constituents.^ 

§  7.  Congress,  it  will  be  remembered,  has  the  power  to  determine 
when  the  States  shall  choose  the  electors,  and  to  appoint  the  day  on 
which  they  shall  give  their  votes ;  which  day  must  be  the  same 
throughout  the  United  States.  March  1,  1792,  the  year  of  Gen. 
Washington's  second  election.  Congress  passed  an  act  on  this  sub- 
ject, declaring  that  the  electors  shall  be  appointed  within  thirty-four 
days  preceding  the  first  Wednesday  in  December  of  each  year  when 
electors  were  to  be  appointed.  This  act  did  not  specify  the  day  on 
which  they  should  be  appointed.     It  specified  the  day,  however,  for 

1  Story  on  Const.,  ^  1,463. 


266  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 

the  electors  to  give  their  votes ;  which  is  the  first  Wednesday  in 
December  next  after  their  election. 

§  8.  But  Jan.  23,  1845,  Congress  passed  another  act,  amenda- 
tory of  the  first,  fixing  the  day  on  which  electors  should  be  elected 
throughout  the  United  States.  That  day  is  the  Tuesday  next  after 
the  first  Monday  in  the  month  of  November  of  the  year  in  which 
they  are  chosen.  The  day  on  which  the  electors  are  to  give  their 
votes  was  not  changed  by  this  amendment,  but  remains  the  first 
Wednesday  of  December  next  after  their  election. 

§  9.  By  this  act,  each  State  may  provide  by  law  for  filling  vacan- 
cies, if  any  occur,  when  the  electors  meet  to  give  their  electoral 
votes.  The  States  may  each  provide  by  law  also  for  appointing 
electors  qfierwards,  if  an  election  of  electors  on  the  day  prescribed 
by  Congress  results  in  a  failure  to  elect  one  or  more  of  the  electors. 

§  10.  By  this  act  of  March  1,  1792,  the  electors  of  each  State 
are  to  meet  at  such  place  as  the  legislature  thereof  may  designate, 
and  give  their  votes  by  ballot  for  President  and  Vice-President. 
They  are  then  to  make  and  sign  three  certificates  of  all  the  votes  by 
them  given,  and  they  are  to  seal  them  up.  They  are  to  certify  on 
each  certificate  that  a  list  of  the  votes  of  their  States  respectively 
for  President  and  Vice-President  is  contained  therein. 

They  shall  appoint  a  person  to  take  charge  of  and  deliver  one  of 
the  same  certificates  to  the  President  of  the  Senate  at  the  seat  of  gov- 
ernment before  the  first  Wednesday  of  January  then  next  ensuing. 

Another  of  the  certificates  is  to  be  forwarded  forthwith  by  mail 
to  the  President  of  the  Senate  at  the  seat  of  government. 

The  third  certificate  is  to  be  delivered  to  the  judge  of  the  district 
court  in  which  the  electors  assemble. 

3.-PR0CEEDINGS   IN  CONGRESS, 

\8t.  The  President  of  the  Senate  shall  open  all  the  certificates 
in  the  presence  of  both  houses  of  Congress. 

2d.   The  votes  shall  then  he  counted. 

Sd.  The  person  having  the  greatest  number  of  votes  for 
President  shall  be  ^declared  elected '\  President,  if 
such  number  be  a  majority  of  the  whole  number  of 
electors  crppointed.  94. 


Part  II.]  EXECUTIVE  department.  267 

§11.  It  will  be  observed,  that  although  the  lists  of  persons  voted 
for  as  President  and  Vice-President  are  directed  to  the  President  of 
the  Senate,  yet  he  must  open  them  in  the  presence  of  both  houses. 
This  gives  dignity  and  insures  fairness  in  the  proceeding.  The 
votes  are  counted  by  tellers  appointed  for  that  purpose  by  the  Presi- 
dent of  the  Senate.  The  proceeding  takes  place  in  the  House  of 
Representatives. 

§12.  No  person  can  be  declared  elected  who  does  not  receive  a 
majority  of  the  whole  number  of  electors  appointed.  Usually  there 
are  but  two  candidates  in  the  field,  each  placed  in  nomination  by 
the  political  party  with  whose  principles  he  is  identified  ;  but  it  has 
sometimes  happened  that  three  or  more  were  placed  in  nomination. 
In  such  cases,  it  might  be  quite  likely  that  no  candidate  would  re- 
ceive a  full  majority  of  all  the  electoral  votes.  Such  was  the  case 
in  1825,  at  the  election  for  the  tenth  Presidential  term.  Four  can- 
didates were  in  the  field,  neither  of  whom  received  a  majority  of  all 
the  electoral  votes  :  so  there  was  a  failure  to  elect  a  President  by 
the  people.  The  Constitution  has  made  provision  for  such  cases  by 
referring  the  election  to  the  House  of  Representatives  as  a  last 
resort. 

4. -HOUSE  or  REPRESENTATIVES. 

\st.  If  no  person  have  such  majority^  then  the  House  of  Rep- 
resentatives shall  choose  immediately  the  JPreside?it. 
2d.   He  shall  be  chosen  from  the  jyersons  having  the  highest 
numbers,  not  exceeding  three,  on  the  list  of  persons 
voted  for  as  President. 
3(7.    The  election  in  such  cases  shall  be  by  ballot. 
Ath.  The  vote  shall  be  taken  by  /States. 

bth.  The  representation  from  each  State  shall  have  one  vote. 
6th.  A  quorum  for  this  purpose  shall  consist  of  a  member  or 

membei's  from  two-thirds  of  the  States. 
7th.  A  majority  of  all  the  States  shall  be  necessary  to  a 
choice.    94:. 
§  13.  When  the  people  fail  to  elect  a  President  through  their  elect- 
ors, it  would  seem  proper  that  the   choice  should  devolve  on  the 
House  of  Representatives.     This  seems  to  be  the  most  appropriate 


268  ANALYSIS   OF  CIVIL  GOVEKNMENT.     [Part  II. 

body,  as  the  members  of  which  it  is  constituted  are  chosen  by  the 
popular  voice,  and  are  the  more  immediate  representatives  of  the 
people.  But,  when  the  election  takes  place  in  the  house,  the  selec- 
tion must  be  made  from  the  persons  already  voted  for  by  electoral 
vote.  The  house  is  not  at  liberty  to  take  up  a  new  candidate,  and 
their  selection  must  be  confined  to  those  receiving  the  highest  num- 
bers, not  exceeding  three,  on  the  list  of  persons  voted  for  as  President. 
This  provision  is  made  for  the  purpose  of  excluding  from  the  list  all 
such  persons  as  receive  but  a  small  number  of  the  electoral  votes. 

§  14.  The  vote  must  be  taken  by  ballot  and  by  States ;  each  State 
having  but  one  vote.  The  mode  of  voting  by  States,  if  the  choice 
should  fall  to  the  House  of  Representatives,  was  but  a  just  compen- 
sation to  the  smaller  States  for  their  loss  in  the  primary  election. 
When  the  people  vote  for  the  President,  it  is  manifest  that  the  large 
States  enjoy  a  decided  advantage  over  the  small  States;  and  thus 
their  interests  may  be  neglected  or  sacrificed.  To  compensate  them 
for  this,  in  the  eventual  election  by  the  House  of  Representatives,  a 
corresponding  advantage  is  given  to  the  small  States.  It  was,  in 
fact,  a  compromise.^ 

There  is  no  injustice  in  this ;  and,  if  the  people  do  not  elect  a 
President,  there  is  a  greater  chance  of  electing  one  in  this  mode 
than  there  would  be  by  a  mere  representative  vote  according  to  num- 
bers, as  the  same  divisions  would  probably  exist  in  the  popular 
branch  as  in  their  respective  States.^ 

It  may  be  remarked  here  that  this  was  the  mode  of  passing  laws 
under  the  Confederation. 

§15.  But  the  house  can  not  proceed  to  the  election  of  a  President 
unless  at  least  two-thirds  of  the  States  are  represented  on  the  floor. 
A  majority  can  transact  the  ordinary  business  of  legislation ;  but 
the  election  of  a  Chief  Magistrate  of  the  nation  was  regarded  by  the 
authors  of  the  Constitution  as  a  matter  of  such  grave  interest  to  the 
country,  that  they  did  not  hesitate  to  insert  this  provision  with 
unanimity.  A  majority  of  all  the  States  is  necessary  to  a  choice, 
not  a  majority  of  the  States  present  by  representation ;  that  is,  not 
a  majority  of  the  quorum,  but  a  majority  of  all  the  States. 

1  2  Elliot's  Debates,  364.  2  R^wle  on  Const.,  chap.  v.  p.  54. 


Paet  II.]  executive  department.  2G9 

§16.  It  may  occur,  however,  that  even  the  House  of  Representa- 
tives shall  fail  to  elect  a  President  of  the  United  States  within  the 
time  limited  for  such  election  by  the  Constitution.  They  have  three 
candidates,  neither  of  whom,  perhaps,  may  receive  a  majority  of  all 
the  States.  They  may  continue  to  vote  on  the  question,  however, 
until  the  fourth  day  of  the  March  next  following  the  commencement 
of  their  effort.  But  their  trial  may  result  in  a  failure.  In  such 
case,  the  Vice-President  shall  act  as  President,  as  in  case  of  the  death 
or  other  constitutional  disability  of  the  President.  (See  the  next 
chapter.) 

§17.  The  present  method  of  electing  a  President  of  the  United 
States,  which  we  have  been  considering,  is  in  accordance  with  the 
provisions  of  the  12th  Article  of  Amendments  to  the  Constitution. 
This  amendment  was  proposed  by  Congress  in  October,  1803 ;  and 
was  ratified  so  as  to  become  a  part  of  the  Constitution  before  Sep- 
tember, 1804.     In  the  copy  of  the  Constitution  found  in  this  work, 
it  is  marked  as  paragraph  94.     The  original  article,  of  which  para- 
graph 94  is  an  amendment,  is  not  numbered ;  but  it  is  still  printed 
with  copies  of  the  Constitution,  and  is  known  as  clause  3,  section  1, 
of  Art.  II.     It  is  inserted  merely  to  show  what  it  was.     The  article 
and  amendment  differ  in  several  important  particulars. 
1st.  By  the  original  article,  the  electors  voted  each  for  two  persons 
as  President.     By  the  amendment,  the  electors  vote  for  two 
persons,  but  designating  one  as  President,  and  the  other  as 
Vice-President. 
2d.    By  the  original  article,  two  persons  might  each  receive  a  majori- 
ty of   the  whole  number  of    electors  appointed.     By  the 
amendment  this  is  impossible,  as  each  elector  votes  for  only 
one  person  as  President,  and  one  as  Vice-President. 
3d.    If  more  than  one  person  had  a  majority  of  the  electoral  votes, 
and  each  an  equal  number,  the  election  went  into  the  House 
of  Representatives  on  those  two  names. 
4th.  If  two  candidates  received  each  a  majority  of  all  the  electoral 
votes,  but  one  of  whom  received  a  larger  vote  than  the  other, 
the  one  receiving  the  highest  vote  was  elected. 
5th.  If  no  person  received  a  majority  of  all  the  electoral  votes,  the 


270  ANALYSIS  OF  CIVIL.  GOVEENMENT.     [Part  II. 

election  went  to  the  House  of  Representatives;  and,  from  the 
five  highest  on  the  list,  they  were  to  make  the  election.     By 
the  amendment,  it  is  from  the  three  highest  on  the  li.st. 
6th.  In  every  case,  after  the  choice  of  the   President,  the   person 
havino-  the  greatest  number  of  votes  of  the  electors,  whether 
that  number  were  a  majority  or  not,  was  to  be  the  Vice- 
President. 
7tb.  If  two  or  more  received  an   equal  number,  and  being  highest 
on  the  list,  the  election  went  into  the  Senate  on  these  two  or 
more  names.     Thus  the  Vice-President  could  not  be  elected 
until  after  the  election  of  the  President. 
8th.  By  the  original  article,  the  Senate  was  to  elect  the  Vice-Presi- 
dent by  ballot :  this  is  not  required  under  the  amendment. 
9th.  Under  the  amendment,  the  Vice-President  acts  as  President  if 
the  House  of  Representatives  fail  to  elect  a  President  on  or 
before  the  fourth  day  of  March  then  next  following,  when  the 
right  to  do  so  shall  devolve  on  them  ;  but,  under  the  original 
article,  no  Vice-President  could  be  elected  until  after  the 
President  should  be  elected. 
§18.  In  1801,  Thomas  Jefferson  was  elected   President  by  the 
House  of  Representatives ;  and,  in  1825,  John  Quincy  Adams  also. 
These  are  the  only  instances  in  our  history  of  the  election  of  a  Cliief 
Magistrate  by  the  House  of  Representatives.      The  protracted  con- 
test in  the  house  in  1801  between  Thomas  Jefferson  and  Aaron 
Burr,  candidates  for  the  Presidency,  led  to  the  adoption  of  the  12th 
Article  of  Amendments.     The  number  of  electoral  votes  for  each 
of  these  two  candidates  was  equal,   each  having  a  majority  of  the 
whole  number.     In  accordance  with  the  provisions  of  the  original 
article  for  electing  a  President,  the  election  went  into  the  house. 
There,  through  thirty-five  ballotings,  the  results  were  uniform ;  Jef- 
ferson receiving  the  votes  of  eight  States,  Burr  of  six,  and  two  being 
divided.     There  were  sixteen  States  in  the  Union  at  that  time.     On 
tlie  thirty-sixth  ballot,  Jefferson  received  the  votes  of  nine  States, 
giving  him  a  majority  of  the  whole. 

§  19.  Jefferson  was  declared  elected  President ;  and  Burr,  receiving 
the  next  highest  number  of  votes,  was  declared  elected  Vice-Presi- 


PaktII.]  executive  department.  271 

dent.  The  whole  country  was  violently  agitated  during  the  contest, 
which  lasted  several  weeks.  Before  the  next  Presidential  election 
occurred,  the  amendment  was  adopted  which  rendered  it  impossible 
that  another  contest  of  such  exciting  interest  should  occur,  as  a 
Vice-President  can  be  elected  under  the  amendment  without  any 
reference  to  the  election  of  President ;  and  he  would  perform  the 
duties  of  President,  as  we  shall  see  in  the  next  chapter. 

§20.  But  one  President  has  been  elected  by  the  Houise  of  Repre- 
sentatives, as  before  stated,  under  the  amendment.  This  was  the 
case  of  John  Quincy  Adams  in  1825,  a  brief  history  of  which  is 
given  in  Chap.  I ,  Art.  IX.,  Part  II.,  of  this  work. 

ART.  v.— OATH  OF  OFFICE. 

Before  he  enter  on  the  execution  of  his  office^  he  shall 
swear  or  affirm, 

1.  That  he  will  faithfully  execute  the  office  of  President  of 

the  United  States ;  and, 

2.  That  he  will  to  the  best  of  his  ability  preserve,  protect, 

and  defend  the  Constitution  of  the  United  States.  50. 
There  is  little  need  of  comment  on  this  clause.  No  man  can 
well  doubt  the  propriety  of  placing  a  President  of  the  United  States 
under  the  most  solemn  obligations  to  preserve,  protect,  and  defend 
the  Constitution.  It  is  a  suitable  pledge  of  his  fidelity  and  respon- 
sibility to  his  country,  and  creates  upon  his  conscience  a  deep  sense 
of  duty,  by  an  appeal  at  once,  in  the  presence  of  God  and  man,  to 
the  most  sacred  and  solemn  sanctions  which  can  operate  upon  the 
human  mind.^ 

ART.  VI.  — HOW  REMOVABLE. 

He  shall  be  removed  from  office  on  impeachment  for  and 
conviction  of  treason,  bribery,  and  other  high  crimes  and 
misdemeaiiors.  ©4. 

(The  subject  of  impeachments  is  treated  in  Chap.  I.,  Art.  IX.,  and 
Chap.  II.,  Art.  X.,  Part  II.) 

1  Story  on  Const.,  §  1488. 


272  ANALYSIS   OP   CIVIL  GOVERNMENT.     [Paet  IL 

ART.  yil.  — SALARY. 

He  shall  receive  for  his  services,  at  stated  times,  a  compen- 
sation ichich  shall  neither  be  increased  nor  diminished  during 
the  term  for  which  he  shall  have  been  elected.    58. 

§  1.  Without  this  clause,  the  Executive  would  be  dependent  for 
his  support  on  the  will  of  Congress.  By  securing  their  favor,  his 
salary  might  be  greatly  enlarged ;  and,  by  incurring  their  displeasure, 
it  might  be  greatly  diminished.  If  Congress  were  allowed  a  dis- 
cretionary power  over  the  salary  of  the  Executive  (as  men  of  high 
station  are  not  always  beyond  the  reach  of  temptation),  his  approba- 
tion of  legislative  measures  might  sometimes  depend  on  the  liberal- 
ity of  legislative  appropriations.  There  are  men  who  could  be 
influenced  by  no  such  mercenary  motive  ;  but,  on  the  other  hand, 
instances  of  historic  notoriety,  even  in  this  country,  might  be  cited 
in  proof  of  the  purchase  of  Executive  favor  through  the  seductive 
allurements  of  pecuniary  considerations. 

§  2.  As  the  Executive  salary  is  in  the  beginning  of  his  term,  so 
it  must  remain  to  tlie  end.  Congress  has  no  power  to  alter  it,  by 
increase  or  diminution,  to  take  effect  before  a  new  election  and  a 
new  period  of  service  shall  begin.  The  first  year  of  Washington's 
first  term,  Sept.  24,  1789,  the  President's  salary  was  fixed  at 
twenty-five  thousand  dollars  a  year.  Feb.  18,  1793,  an  act  was 
passed  permanently  establishing  the  President's  salary  at  this  sura. 
But  he  has  the  White  House,  which  is  the  Executive  Mansion,  rent 
free.  The  house  is  also  furnished  for  him  and  taken  care  of,  the 
grounds  cultivated,  his  fuel  and  light  provided,  and  many  other 
things  at  the  expense  of  the  public  treasury. 

ART.  VIII. ^POWERS  AND  DUTIES. 
1.  — MILITAKY. 

\st.  He  is  commander-in-chief  of  the  army  and  navy  of  the 

United  States. 
"2d.   Also  of  the  7nilitia  of  the  several  States  when  called  into 
the  actual  service  of  the  United  States.  60. 
§  1.  It  is  not  to  be  inferred  from  this  article  that  the  President  is 
actually  to  take  command  in  person  in  case  of  war.     This  is  not  the 


Part  II.]  executive  depaetment.  273 

intention;  though  he  has  the  power,  wore  he  so  disposed.  It  might 
be  proper  that  the  President  should  actually  place  himself  at  the 
head  of  an  army  in  the  field,  were  he  known  to  be  an  experienced 
and  skillful  mihtary  commander.  Such  has  not  been  the  practice, 
however,  either  in  our  foreign  or  domestic  wars,  or  in  our  border 
warfare  with  the  Indians. 

§  2.  Though  the  President  does  not  take  the  field  in  person,  there 
is  a  sense  in  which  he  takes  command  of  the  army  and  navy.  He 
du-ects  the  application  of  the  military  force  in  the  execution  of  the 
laws,  ia  maintaining  peace  at  home,  and  in  resisting  foreign  aggres- 
sion. These  duties  are  of  an  executive  character,  and  are  properly 
vested  in  the  President,  that  unity  of  plan,  promptitude,  activity, 
and  decision,  may  be  secured. 

§  3.  For  the  same  reasons,  the  Executive,  is  made  commander- 
in-chief  of  the  militia  of  the  several  States  when  called  into  the  actual 
service  of  the  United  States.  The  chief  military  dependence  of  the 
United  States,  especially  in  a  protracted  and  formidable  war,  must  be 
on  the  militia  of  the  several  States.  The  standing  army  is  constituted 
of  but  a  few  thousands  at  most ;  while,  if  necessary,  the  militia  may 
be  called  forth  by  the  million.  In  order  that  there  may  bo  unity  of 
action,  uniformity  of  training  and  discipline,  and  concert  of  purpose, 
it  is  necessary  that  regulars  and  militia  should  be  subordinate  to  a 
single  head. 

2.- CIVIL. 

1st.  —  Departments. 

He  may  require  the  written  opinion  of  the  principal 

officers    ia    each    of   the    executive    departments    on 

any  subject  relating  to  the  duties  of  their  respective 

offices.   60. 

§  4.  The  authors  of  the  Constitution  inserted  this   power   from 

abundance  of  caution ;  and  some  of  them  considered  it  as  a  mere 

redundancy  in  the  plan,  as  the  right  for  which  it  provides  would 

result  itself  from  the  office.     The  powers  and  duties  of  the  various 

executive  departments  will  be  further  considered  in  Chap.  XV. 

of  Part  II. 

18 


274  ANALYSIS  OF  CIVIL  GOVERNMENT.      [Part  II. 

2d.  —  Reprieves  and  Pardons. 

He  shall  have  power  to  grant  reprieves  and  pardons  for 
oJfe?ises  against  t/ie  United  /States,  except  in  cases  of 
impeachment.  GO, 

§  5.  A  reprieve  is  the  temporary  suspension  of  the  execution  of 
sentence,  especially  the  sentence  of  death.  A  pardon  is  the  remis- 
sion of  a  penalty,  and  a  release  of  the  offender  from  punishment. 
Reprieves  may  become  necessary  or  expedient  on  account  of  doubts 
of  guilt,  arising  from  the  discovery  of  new  testimony  after  sentence, 
and  before  execution ;  or  considerations  of  pubHc  policy  may  require 
a  like  interference.  The  same  reasons  might  justify  the  grant  of  a 
full  pai'don.  Discretionary  power  over  such  cases  should  be  vested 
somewhere,  "  as  the  law  can  not  be  framed  on  principles  of  compas- 
sion to  guilt."  The  chief  executive  magistrate  should  he  allowed 
to  hold  a  court  of  equity  in  his  own  breast,  to  soften  the  rigor  of  the 
general  law  in  such  criminal  cases  as  may  merit  an  exemption  from 
punishment,  or  as  may  properly  plead  for  temporary  delay  of  execu- 
tion of  sentence. 

§  6.  In  monarchical  countries,  this  prerogative  belongs  to  the 
sovereign.  It  can  not  be  denied,  that,  in  a  republic,  it  should  be 
vested  in  the  hands  of  the  chief  executive  magistrate,  if  the  power 
is  to  be  exercised  at  all.  In  the  administration  of  human  govern- 
ment, the  exercise  of  the  benign  power  of  reprieve  and  pardon  may 
often  become  necessary  from  motives  of  humanity  and  good  policy. 
"  The  criminal  code  of  every  country  partakes  so  much  of  necessary 
severity,  that,  without  an  easy  access  to  exceptions  in  favor  of  unfor- 
tunate guilt,  justice  would  wear  a  countenance  too  sanguinary  and 
cruel." 

3d.  —  Treaties. 

He  shall  have  power,  by  and  with  the  advice  and  con- 
sent of  the  Senate,  two-thirds  of  the  members  present 
concurring,  to  make  treaties.   61. 
(The  word  "  treaty  "  is  defined  in  Chap.  II.,  Art.  X.,  Part  11.) 
§  7.  In  forming  treaties,  the  entire  plan,  with  all  its  conditions 
Jrnd  stipulations,  is  settled  through  the  President  on  the  part  of  the 


Pakt  II.]  EXECUTIVE  DEPAKTMENT.  275 

United  States ;  the  President  acting  through  the  agency  of  ambas- 
sadors and  foreign  ministers  duly  accredited  by  our  government. 
The  enth-e  proposed  treaty,  in  outline  and  detail,  with  all  necessary 
drawings,  maps,  and  documents,  is  submitted  to  the  Senate  by  the 
President.     The  Senate  discusses  it  in  secret  session. 

§  8.  Secrecy  and  dispatch  being  essential  to  success  in  the  nego- 
tiation of  treaties,  it  would  be  unsafe  to  trust  the  preliminaries  to  a 
body  constituted  of  a  large  number  of  persons.  The  hazard  of  ex- 
tensive publicity  would  be  imminent ;  and  such  publicity  in  the  early 
stages  of  tbe  proceeding  would  be  likely  to  defeat  the  enterprise. 
It  would  not  be  strange  should  it  encounter  the  intrigues  and  inter- 
ferences of  jealous  and  interested  neighboring  nations.  No  treaty 
can  be  complete,  on  the  part  of  our  government,  until  ratified  by 
the  Senate. 

4th.  —  Appointments. 

He  shall  nominate,  and,  by  and  with  the  admce  and 

consent  of  the  ^Senate,  appoint, 

1st,  Ambassadors,  other  public  m,inisters,  and  con- 
suls; 
2d.  Judges  of  the  Supreme  Court ; 
Sd.  All  other  officers  of  the  United  /States  whose 
appointments    are   not    otherwise  provided 
for  i?i   the    Constitution,  and  which  shall 
be  established  by  law.   61. 
§  9.  The  President  has  the  exclusive  power  of  selection  of  the 
officers  named  in  this  article,  though  his  first  choice  may  not  be  con- 
firmed by  the  Senate.     In  such  casp,  he  may  select  again  and  again 
until  his  nominee  shall  be  confirmed.     The  Senate  has  no  power  of 
selecting :  they  can  only  act  on  such  names  as  shall  be  presented  by 
the  Executive.     In  Art.  XII.,  Chap.  IV.,  Part  II.,  we  have  seen 
that  Congress  has  the  power  to  vest  the  appointments  of  such  infe- 
rior officers  as  they  think  proper,  either  in  the  President  alone,  the 
courts  of  law,  or  the  heads  of  departments.    That  power  is  general- 
ly regarded  as  somewhat  modifying  the  power  given  in  this  article, 
thouorh  it  does  not  define  what  classes  are  to  be  considered  as  **  in- 


276  ANALYSIS  OF  CIVIL  GOVEKNMENT.     [Part  II. 

ferior  officers."  Congress  early  came  to  the  decision,  however,  that 
"  inferior  officers  "  did  not  include  the  heads  of  departments. 

§  10.  When  nominations  are  made  by  the  President,  they  are  pre- 
sented to  the  Senate  in  writing ;  and  this  body  acts  upon  them  in 
secret  session,  and  under  the  injunction  that  discussions  on  their 
merits  or  the  qualifications  of  the  nominees  shall  be  hejpt  secret.  A 
numerical  majority  of  the  Senate  decides  the  question  of  confirma- 
tion or  rejection  of  the  candidate  nominated.  If  the  nominee  is 
confirmed,  or  the  nomination  ratified,  the  President  issues  a  commis- 
sion accordingly,  unless,  in  the  mean  time,  he  has  concluded  to 
decline  it,  which  he  is  at  liberty  to  do ;  in  which  case,  he  may  make 
another  nomination. 

§  11.  The  responsibility  of  the  Senate  and  the  President  is  dis- 
tinct. He  can  never  be  compelled  to  yield  to  their  appointment  of 
a  man  unfit  for  office ;  and,  on  the  other  hand,  they  may  withhold 
their  advice  and  consent  from  any  candidate,  who,  in  their  judgment, 
does  not  possess  due  qualifications  for  office.  But  it  is  not  expected 
that  the  Senate  will  ordinarily  fail  of  ratifying  the  appointment  of  a 
suitable  person  for  the  office.-^ 

§  12.  The  power  of  removal  from  offices  filled  by  the  united 
authority  of  President  and  Senate  has,  for  the  most  part,  been  con- 
ceded to  the  President  alone.  Grave  doubts  of  the  propriety  of 
this,  however,  have  been  expressed  by  prominent  and  distinguished 
statesmen  from  the  earliest  period  of  our  history,  under  our  present 
Constitution.  Many  have  contended,  that,  since  the  Constitution  is 
silent  on  the  subject,  it  should  require  the  same  power  to  remove 
that  it  does  to  appoint,  especially  while  the  Senate  is  in  session. 

§  13.  March  2,  1867,  an  act  of  Congress  was  passed,  regulating 
the  tenure  of  certain  civil  offices.  By  this  act,  persons  holding  or 
appointed  to  any  civil  office  by  and  with  the  advice  and  consent  of 
the  Senate  shall  be  entitled  to  hold  such  office  until  a  successor  is 
appointed  in  like  manner  ond  duly  qualified.  The  heads  of  execu- 
tive departments,  and  also  the  Attorney-General,  shall  hold  their 
offices  respectively  for  and  during  the  term  of  the  President  by  whom 

1  Story  on  Const,  §1,531. 


Part  II.]  EXECUTIVE  DEPAHTMENT.  277 

they  may  have  been  appointed,  and  for  one  month  thereafter,  subject 
to  removal  by  and  with  the  advice  and  consent  of  the  Senate.  The 
President,  for  cause  shown,  can  suspend,  during  the  recess  of  the 
Senate,  any  civil  officers  thus  appointed,  until  the  next  meeting  of 
that  body,  and  until  such  suspension  be  acted  upon  by  them. 
Judges  of  the  United-States  courts  are  excepted  from  the  operation 
of  this  provision. 

§  14.  In  such  case,  it  is  made  the  duty  of  the  President,  within 
twenty  days  after  the  meeting  of  the  Senate,  to  report  to  the  Senate 
such  suspension,  with  the  evidence  and  reasons  for  his  action  in  the 
case.  If  the  Senate  concurs,  the  President  may  remove  the  officer, 
and  appoint  a  successor.  If  the  Senate  does  not  concur,  the  sus- 
pended officer  resumes  his  office,  and  receives  again  the  official  salary 
and  emoluments. 

§  15.  An  ambassador  is  a  minister  of  the  highest  rank,  employed 
by  government  to  represent  it,  and  to  manage  its  interests,  at  the 
court  or  seat  of  government  of  some  other  power.  The  word  "  min- 
ister," as  used  in  the  Constitution,  has  nearly  the  same  signification 
as  "ambassador,"  especially  minister  plenipotentiary.  A  consul 
is  a  person  commissioned  to  reside  in  a  foreign  country,  as  an  agent 
or  representative  of  a  government,  to  protect  the  rights,  commerce, 
merchants,  and  seamen  of  the  State,  and  to  aid  in  any  commercial, 
and  sometimes  in  diplomatic,  transactions  with  such  foreign  country. 

bih.  Vacancies. 

He  shall  have  the  power  to  Jill  all  vacancies  that  may 

happen  during  the  recess  of  the  Senate^  by  granting 

commissions  which  shall  expire  at  the  end  of  their 

next  session.   62, 

§  16.  Vacancies  are  liable  to  occur  during  the  recesses  of  the 

Senate,  as  that  body  is  not  in  perpetual  session ;  and,  unless  there 

were  some  power  to  fill  the  vacancies,  of  course  the  interests  of  the 

country  might  suffer.     While  the  Senate  is  in  session,  the  President 

has  no  such  authority.     All  appointments  made  under  this  clause 

expire  at  the  end  of  the  next  session  of  the  Senate  ;  and  it  is  held 

that  if  the  President  nominates  to  the  same  office  one  whom  he  has 


278  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 

appointed,  and  the  Senate  ratifies  the  nomination,  it  is  a  new  ap- 
pointment, for  which  a  new  commission  must  be  given,  and  for  the 
faithful  performance  of  the  duties  of  which  new  bonds  must  be  filed. 

Qth.  Messages. 

1st.  He  shall  frotn  time  to  time  give  Congress  infor- 
mation of  the  state  of  the  Union  ;  and^ 

2d.  Shall  recommend  to  their  consideration  such 
measures  as  he  shall  deem  necessary  and  ex- 
pedient. 63. 
§  17.  This  clause  is  on  the  subject  usually  known  as  the  messages 
of  the  President.  He  enjoys  sources  of  information  on  all  subjects, 
foreign  and  domestic,  far  superior  to  those  belonging  to  any  other 
branch  of  the  government.  Out  of  the  first  part  of  this  clause  has 
come  the  practice  of  delivering  to  Congress  the  annual  messages ; 
and  out  of  the  second,  the  practice  of  delivering  occasional  special  mes- 
sages. On  account  of  his  intimacy  with  the  heads  of  departments, 
he  may  be  presumed  to  be  in  possession  of  valuable  information  re- 
garding the  workings  of  the  laws,  the  systems  of  trade,  finance, 
and  the  operations  of  the  judiciary,  mihtaiy,  naval,  and  civil  estab- 
lishments of  the  Union.  It  is  in  the  highest  degree  proper  that 
information  on  these  matters,  in  the  most  practical  form,  should  bo 
communicated  to  Congress,  and  that  the  President  should  recom- 
mend such  measures  as  he  may  deem  necessary  for  the  correction  of 
any  defects  which  may  have  become  apparent. 

§  18.  The  practice  in  the  time  of  Washington  and  John  Adams 
was  for  the  President,  at  the  opening  of  each  session  of  Congress, 
to  meet  both  houses  in  person,  and  deliver  a  speech  to  them,  con- 
taining his  views  on  public  affairs,  and  his  recommendations  of  meas- 
ures. On  other  occasions,  he  simply  addressed  written  messages  to 
them,  or  either  of  them,  according  to  the  nature  of  the  message. 
To  the  speeches  thus  made  a  written  answer  was  given  by  each 
house ;  and  thus  an  opportunity  was  afforded  by  the  opponents  of 
the  administration  to  review  its  whole  policy  in  a  single  debate  on  the 
answer.  That  practice  was  discontinued  by  President  Jefferson, 
who  addressed  all  his  communications  to  Congress  by  written  mes- 


Part  II.]  EXECUTIVE  DEPARTMENT.  279 

sages  ;  and  to  these  no  answers  were  returned.^      Jefferson's  mno- 
vation  has  been  followed  by  all  succeeding  Presidents. 

*ith.  Congress. 

\sL  On    extraordinary,   occasions,    he    may  convene 

either  or  both  houses  of  Congress. 
2d.  In    cases    of   disagreement    between    them    with 

respect  to  the  time  of  adjournment,  he  may 

adjourn  them  to  such  time  as  he  shall  think 

proper.  63. 
§  19.  Events  may  occur,  entirely  unforeseen  by  the  Congress  at 
its  last  session,  imperiling  the  interests  of  the  country,  and  requir- 
ing the  immediate  convocation  of  that  body.  An  event  of  this  kind 
transpired  in  the  month  of  April,  1861,  from  the  date  of  which 
hostilities  became  general  between  the  North  and  the  South.  Presi- 
dent Lincoln  summoned  Congress  to  meet  the  fourth  day  of  the 
following  July.  That  the  power  to  call  a  meeting  of  Congress 
should  be  vested  somewhere^  there  can  be  no  doubt ;  and  that  it 
should  be  committed  to  the  discretion  of  the  Executive,  all  agree. 

§  20.  It  might  be  barely  possible  that  Congress  should  fail  to 
agree  on  the  time  of  adjournment ;  and,  should  such  an  exigency 
arise,  there  can  be  no  doubt  that  the  Executive  is  the  most  suitable 
third  party  to  interfere  for  the  peaceable  termination  of  the  contro- 
versy.    In  England,  the  sovereign  always  prorogues  the  parliament. 

%th.  Reception. 

He  shall  receive  ambassadors  and  other  public  minis- 
ters. 63. 
§  21.  The  President,  by  and  with  the  advice  and  consent  of  tho 
Senate,  appoints  ambassadors,  other  public  ministers,  and  consuls, 
to  represent  the  interests  of  the  United  States  in  other  countries ; 
but  he  receives  these  classes  of  agents  and  representatives  of  other 
countries  without  the  advice  and  consent  of  the  Senate.  Although 
this  clause  does  not  include  consuls  expressly,  yet  the  power  is 
inferred,  both  from  other  parts  of  the  Constitution  and  from  the 

1  Rawle  on  Const.,  ch.  16. 


280  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 

general  nature  of  executive  duties.  Consuls  are  not  diplomatic 
but  commercial  agents. 

§  22.  The  reception  of  ambassadors  and  other  public  ministers  is 
a  recognition  of  the  national  character  and  standing  of  the  countries 
which  they  represent.  Their  reception  may,  therefore,  become  a 
very  nice  and  delicate  question  with  the  Executive.  The  Executive 
is  not  obliged  to  receive  an  ambassador  or  pubhc  minister,  even 
though  he  comes  clothed  with  proper  authority  from  a  nation  with 
whom  we  are  at  peace,  and  which  is  recognized  among  the  great 
family  of  nations.  A  refusal  is  not  a  just  cause  of  war,  nor  even 
of  offense  in  the  national  sense ;  though  it  might  be  deemed  an  un- 
friendly act  were  it  not  accompanied  by  friendly  explanations. 

§  23.  A  refusal  is  sometimes  made  on  the  ground  of  the  bad 
character  of  the  minister,  or  his  former  offensive  conduct,  or  of  the 
subject  of  the  embassy  not  being  proper,  or  convenient  for  discus- 
sion. But  a  much  more  delicate  occasion  is  when  a  civil  war  breaks 
out  in  a  nation,  each  party  claiming  the  sovereignty  of  the  whole, 
and  the  contest  has  not  yet  been  settled  between  the  contending 
parties.  In  such  a  case,  a  neutral  nation  may  very  properly  with- 
hold its  recognition  of  the  supremacy  of  either  party,  and  refuse  to 
receive  a  minister  from  either.'^  Suppose  Great  Britain  had  recog- 
nized the  seceded  States  during  the  Great  Bebellion  as  an  independ- 
ent nation,  the  United  States  would  probably  have  called  home  their 
own  .minister  from  that  country,  and  war  might  have  been  the  result. 

9^A.  Execution  of  the  Laws. 

He  shall  take  care  that  the  laws  are  faithfully  exe- 
cuted. 63. 
§  24.  This  refers  to  the  laws  of  the  United  States,  and  not  to  the 
laws  of  the  several  States.  When  a  law  has  once  been  passed  by 
all  the  formalities  of  the  Constitution,  it  is  the  solemn  duty  of  the 
President  of  the  United  States  to  enforce  its  execution,  until  it  is 
cither  repealed,  or  declared  by  competent  authority  to  be  unconstitu- 
tional. He  has  no  discretion,  but  must  not  only  render  obedience 
to  the  law  himself,  but  must  enforce  its  execution  on  all  others. 

1  Kent's  Com.,  Lect.  2. 


Pakt  II.]  VICE-PKESIDENT.  281 

Were  he  to  refuse,  he  would  be  guilty  of  a  high  misdemeanor,  and 
might  be  removed  from  office  by  impeachment,  and  otherwise  pun- 
ished according  to  law. 

§  25.  He  has  ample  power  to  execute  the  laws,  as,  for  this  pur- 
pose, the  whole  army  and  navy  are  placed  at  his  command,  and  under 
his  control ;  and,  if  need  be,  he  can  call  forth  the  militia  of  the 
several  States  to  crush  any  armed  resistance  to  the  laws  of  the  land. 

10th.  Commissions. 

Jj?e  shall  commission  all  officers  of  the  United  States. 
63. 
§  26.  A  commission  is  a  formal  certificate  of  appointment  issued 
by  the  proper  authority.  In  this  case,  it  is  signed  by  the  President 
of  the  United  States,  and  sealed  by  the  Secretary  of  State  with  the 
great  seal  of  the  United  States.  The  commission  recites  the  powers 
conferred,  with  definite  certainty ;  and  it  is  delivered  to  the  person 
whose  appointment  is  made  by  it. 


CHAPTER    XIII. 

VICE-PRESIDENT. 
ARTICLE  I.  — ELIGIBILITY. 

N'o  person  constitutionally  ineligible  to  the  office  of  Presi- 
dent shall  be  eligible  to  that  of  Vice-President  of  the  United 
States.  96. 

§  1.  This  clause  is  in  the  twelfth  Article  of  Amendments.  It  was 
not  in  the  original  instrument ;  and  there  was  no  necessity  for  it,  the 
qualifications  of  the  President  being  defined  therein.  There  was 
no  such  thing  as  a  candidate  for  the  Vice-Presidency ;  but  both 
candidates  were  for  the  Presidency. 

§  2.  As  the  Vice-President  may  be  called  upon  to  act  as  Presi- 
dent, the  former  should  have  the  same  qualifications  as  the  latter. 
Three  times  since  the  adoption  of  the  Constitution,  the  Vice-Presi- 
dent has  become  acting  President  on  account  of  the  death  of  the 
President.     John  Tyler  succeeded  to  the  Presidency  in  1841,  by 


282  ANALYSIS   OF  CIVIL  GOVERNMENT.     [Part  II. 

the  death  of  President  Harrison  ;  Millard  Fillmore  in  1850,  by  the 
death  of  President  Taylor ;  and  Andrew  Johnson  in  1865,  by  the 
death  of  President  Lincoln. 

ART.  II. -ELECTION. 

1.  In  Congress. 

The  person  having  the  greatest  number  of  votes  for 
Vice-President  shall  be  the  Vice-President  if  such 
number  be  a  majority  of  all  the  electors  appointed.  95. 

2.  In  Senate. 

\st.  If  no  person  have  a  majority  as  Vice-President^ 
then,  from  the  two  highest  numbers  on  the  list  of 
persons  voted  for  as  such,  the  Senate  shall  choose 
a  Vice-President. 
2d.   A  quorum  for  this  purpose  shall  consist  of  two- 
thirds  of  the  whole  number  of  senators, 
dd.   A  majority  of  the  whole  number  of  senators  shall 
be  necessary  to  a  choice.  95# 
§  1.  The  first  part  of  this  article  refers  to  the  proceedings  in 
Congress  on  opening  and  counting  the  electoral  votes  for  President 
and  Vice-President  of  the  United  States.     It  will  be  remembered, 
that,  if  no  person  receives  a  majority  of  all  the  electoral  votes  for 
President,  the  election  of  that  officer  devolves  on  the  House  of  Rep- 
resentatives.    But  the  house  does  not  elect  the  Vice-President  if 
there  is  a  failure  to  elect  that  officer  by  the  majority  of  the  electoral 
votes.     In  such  case,  the    Senate  elects  the  Vice-President.     The 
only  instance  of  this  kind  in  our  history  was  the  election  of  Richard 
M.  Johnson  in  1837. 

§  2.  As  just  stated,  the  Senate  chooses  the  Vice-President  if  no 
candidate  for  that  office  receives  a  majority  of  all  the  electoral  votes. 
The  Vice-President  is  not  now,  as  formerly,  a  competitor  for  the 
office  of  President.  There  is  scarcely  a  possibility  that  the  Senate 
can  fail  to  elect  the  Vice-President,  as  they  must  confine  their  votes 
to  the  two  highest  candidates  on  the  list  of  persons  voted  for  as  such 
by  the  electors.  The  only  chance  is,  that  possibly  the  Senate  might 
be  equally  divided,  and  that  there  might  be  no  Vice-President  in 


Part  II.]  VICE-PRESIDENT.  283 

the  chair  to  give  the  casting  vote ;  but  such  a  contingency  is  quite 
too  improbable  to  merit  serious  discussion,  especially  as  the  Senate 
would  be  at  liberty  to  repeat  the  trial  to  elect  until  they  should  be 
successful. 

§  3.  As  the  Vice-President  is  the  President  of  the  Senate,  it 
seems  proper  that  the  Senate  should  elect  this  officer  in  case  of  fail- 
ure to  elect  by  the  electors.  The  proceeding  is  judiciously  guarded 
in  requiring  two-thirds  of  all  the  members  of  the  Senate  to  be  present, 
and  in  still  further  requiring  a  majority  of  all  the  senators  to  secure 
an  election. 

ART?  III.  — OATH  OF  OFFICE. 

He  shall  be  hound  by  oath  or  affirmation  to  support  the 
Constitution  of  the  United  States.   81  • 

The  same  reasons  apply  for  requiring  the  Vice-President  to  act 
under  the  solemn  obligations  of  an  oath  or  affirmation  that  apply  to 
all  other  Federal  officers  and  to  the  members  of  the  National 
Council. 

ART.  IV.  — TERM. 

He  shall  hold  his  office  during  the  term  of  four  years.  SS, 
The  same  reasons  that  governed  in  fixing  the  Presidential  term  at 

four  years  apply  with  equal  force  to  the  term  of  the  Vice-President. 

(See  Chap.  XII.,  Art.  II.,  Part  II.) 

ART.  v.  — POWERS  AND  DUTIES. 

1.  He  shall  be  President  of  the  Senate,  but  have  no  vote  un- 

less they  be  equally  divided.    11, 

2.  In  case  of  the  removal  of  the  President  from  office^  or  of 

his  death,  resignation,  or  inability  to  discharge  the 
powers  and  duties  of  said  office,  the  same  shall  devolve 
on  the  Vice-President.  57, 

3.  If  the  House  of  Mepresentatives  shall  not  choose  a  Pres- 

ident, ichenever  the  right  of  choice  shall  devolve  on 
them,  before  the  fourth  day  of  March  next  following ,  the 
Vice-President  shall  act  as  President.  04. 
§  1.  The  duties  of  the  Vice-President  as  President  of  the  Senate 


284  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  IL 

are  sucb  as  usually  devolve  on  the  presiding  oflQcer  of  legislative 
bodies.  He  is  to  preside  over  the  deliberations  of  the  Senate,  en- 
force the  rules  of  order,  maintain  due  decorum  among  the  members, 
and  decide  all  questions  of  parliamentary  practice.  He  submits  all 
motions  duly  made  to  the  Senate,  puts  to  vote  all  questions  brought 
forward  for  discussion  and  decision,  and  makes  known  the  result. 
He  also  has  the  appointment  of  the  standing  committees  ;  and  it  is 
his  duty  to  see  that  the  other  officers  of  the  house  faithfully  dis- 
charge their  duties. 

§  2.  Whenever  the  Vice-President  succeeds  to  the  Presidency,  or 
becomes  acting  President,  he  performs  all  the  duties  of  that  officer 
as  though  he  were  originally  elected  to  that  office.  Doubts  have 
been  entertained  by  persons  entitled  to  great  confidence,  that  the 
acting  President  who  reaches  that  office  through  the  Vice-Presidency 
is  in  fact  President.  But  Congress  has  uniformly  recognized  the 
Executive,  in  such  cases,  as  President  to  all  intents  and  purposes ; 
making  no  distinction  whatever  between  him  and  a  President  origi- 
nally elected  as  such  by  the  people.  In  the  articles  of  impeachment 
presented  against  Andrew  Johnson,  he  was  described  as  President 
of  the  United  States ;  and  the  committee  expressly  stated  that 
they  had  thoroughly  and  critically  discussed  the  propriety  of  this 
description  of  his  official  title.  So  it  may  be  regarded  as  settled  by 
the  most  authoritative  precedents,  that  a  Vice-President  becoming 
acting  President  is  President  in  fact. 


CHAPTER  XIV. 

JUDICIAL  DEPAKTMENT. 

ART.  I.— WHERE  VESTED. 

The  judicial  power  of  the  United  States  shall  he  vested, 

1.  In  one  Supreme  Court ;  and^ 

2.  In  such  inferior  courts  as  Congress  may  from  time  to 

time  ordain  and  establish.   O^. 
§  1.    "To  establish  justice  "  was  one  of  the  principal  objects  to 
be  attained  by  the  formation  of  the  Constitution.     This  has  no  ref- 


Part  II.]  JUDICIAL  DEPARTMENT.  285 

erence  to  the  State  judiciaries,  but  to  the  creaticn  of  a  national 
judicial  tribunal.  Under  the  Confederation,  there  was  no  national 
judicial  department.  The  dispensation  of  justice  through  the  State 
courts  was  capricious  and  uncertain.  They  were  influenced  by  local 
interests,  and  therefore  their  decisions  were  various  and  conflicting. 

§  2.  The  Constitutional  Convention  was  unanimously  in  favor  of 
establishing  a  Supreme  Court,  although  at  first  there  was  some  di- 
versity of  opinion  on  the  propriety  of  the  plan  of  including  inferior 
tribunals.  But,  after  thorough  and  exhaustive  discussion,  the  propo- 
sition received  the  unanimous  approval  of  the  Convention. 

§  3.  The  establishment  of  inferior  tribunals  would  seem  to  re- 
sult necessarily  from  the  establishment  of  a  Supreme  Court.  Re- 
course could  not  be  had  to  the  Supreme  Court  in  all  cases  which 
might  properly  be  subjects  of  Federal  adjudication.  It  would  be  out 
of  the  power  of  any  single  court  to  dispose  of  the  immense  amount  of 
business  that  would  be  sure  to  demand  their  attention.  Without 
inferior  tribunals  easy  of  access,  the  sanctuary  of  justice  would  be 
closed  to  the  great  majority  of  American  citizens.  Under  the  au- 
thority to  establish  inferior  tribunals,  each  State  or  district  can  have 
a  Federal  court  or  courts  of  its  own,  competent  to  the  adjudication 
of  all  matters  of  Federal  jurisdiction  within  its  limits. 

§  4.  The  judges  of  the  Supreme  Court  at  present  are  one  chief 
justice,  and  nine  associate  justices,  any  six  of  whom  constitute  a 
quorum.  The  number  of  judges  at  the  organization  of  the  court 
in  September,  1789,  was  six,  — one  chief  justice,  and  five  associate 
justices.  March  3,  1837,  the  number  was  extended  to  nine,  —  one 
chief  justice,  and  eight  associate  justices.  March  3,  1863,  the 
number  was  extended  to  ten,  — one  chief  justice,  and  nine  associate 
justices.  This  court  holds  one  term  a  year  in  the  city  of  Washing- 
ton, beginning  the  first  Monday  of  December. 

§  5.  The  United  States  are  divided,  for  judicial  purposes  and  con- 
venience, into  ten  circuits,  and  these  circuits  are  subdivided  into  dis- 
tricts. Each  of  the  judges  of  the  Supreme  Court  presides  at  a 
circuit  court,  assisted  by  the  district  judge  of  the  district  court  in 
which  the  circuit  court  is  held.  Two  circuit  courts  are  held 
annually  in  most  of  the  circuits. 


286  ANALYSIS   OF  CIVIL  GOVEKNIVIENT.     [Part  II. 

§  6.  The  first  circuit  consists  of  Maine,  New  Hampshire,  Massa- 
chusetts, and  Rhode  Island.  The  associate  justice  is  Nathan  Clif- 
ford of  Portland,  Me.,  who  was  appointed  in  1858. 

The  second  consists  of  New  York,  Vermont,  and  Connecticut. 
Associate  justice,  Samuel  Nelson  of  Cooperstown,  N.Y. ;  appointed 
in  1845. 

The  third  consists  of  New  Jersey  and  Pennsylvania.  Associate 
justice,  Robert  C.  Grier  of  Philadelphia;  appointed  in  1846. 

The  fourth  consists  of  Delaware,  Maryland,  Virginia,  West  Vir- 
ginia, and  North  Carolina.  Chief  justice,  Salmon  P.  Chase  of 
Ohio  ;  appointed  in  1864. 

The  fifth  consists  of  South  Carolina,  Georgia,  Florida,  Alabama, 
and  Mississippi.  Associate  justice,  James  M.  Wayne,  Savannah, 
Ga. ;  appointed  1835. 

The  sixth  circuit  consists  of  Louisiana,  Texas,  Arkansas,  Ken- 
tucky, and  Tennessee.  Associate  justice,  Noah  M.  Swayne, 
Columbus,  0.  ;  appointed  in  1862. 

The  seventh  consists  of  Ohio  and  Michigan.  Associate  justice, 
David  Davis  of  Bloomington,  111. ;  appointed  in  1862. 

The  eighth  consists  of  Illinois  and  Indiana.  Associate  justice, 
Samuel  F.  Miller  of  Keokuk,  lo. ;  appointed  in  1862. 

The  ninth  consists  of  Wisconsin,  Minnesota,  Iowa,  Missouri,  and 
Kansas.     Associate  justice,  Stephen  T.  Field  of  California. 

The  tenth  consists  of  California  and  Oregon.     Associate  justice, 


§  7.  As  already  stated,  in  addition  to  the  Supreme  Court,  Con- 
gress has  established  ten  circuit  courts ;  being  one  circuit  for  each 
of  the  judges  of  the  Supreme  Court.  The  circuit  courts  are  "in- 
ferior courts  "  in  the  Constitutional  sense,  and  are  established  by 
Congress,  although  the  presiding  judge  of  each  circuit  is  also  a 
judge  of  the  Supreme  Court.  There  are  several  districts  in  each 
circuit,  each  having  a  district  court,  over  which  the  district  judge 
presides. 

§  8.  There  is  also  a  Supreme  Court  in  the  District  of  Columbia, 
having  a  chief  justice  and  three  associate  justices.  The  Attorney- 
General  appears  in  the  Supreme  Court  of  the  United  States,  in 


Part  II.]  JUDICIAL  DEPAETMENT.  287 

behalf  of  the  government,  to  protect  its  interests.  There  is  also  a 
United-States  district  attorney  appointed  for  each  district  in  which 
circuit  and  district  courts  are  held,  to  attend,  in  behalf  of  the 
United  States,  to  all  business  in  court  that  concerns  the  govern- 
ment. 

§  9.  Each  court  has  a  clerk,  appointed  by  the  presiding  judge ; 
also  a  marshal,  appointed  by  the  President  with  the  concurrence  of 
the  Senate.  The  marshal  is  the  ministerial  officer  of  the  court, 
serving  its  writs,  precepts,  and  executing  its  orders,  and  transacting 
such  business  and  performing  such  duties  as  usually  devolve  on  the 
sheriff  in  State  courts. 

Then  there  are  four  classes  of  Federal  courts:  — 
1st.  The  Supreme  Court  of  the  United  States,  established  by  the 

Constitution,  but  organized  by  Congress. 
2d.  The  circuit  courts  of  the  United  States,  established  and  organ- 
ized by  Congress. 
3d.  The  district  courts  of  the  United  States,  established  and  organ- 
ized by  Congress. 
4th.  The  Supreme  Court  of  the  District  of  Columbia,  also  estab- 
lished and  organized  by  Congress. 

ART.  II.  — JUDGES. 

1.  How  Appointed. 

By  the  President  of  the  United  States^  by  and  with  the 
advice  and  consent  of  the  Senate.    61. 

2.  Oath  of  Office. 

The  judges  shall  swear  or  affirm  that  they  will  support 
the  Constitution  of  the  United  States.   81. 

3.  Tenure  of  Office. 

The  judges  of  the  Supreme  and  inferior  courts  shall 
hold  their  offices  during  good  behavior.   O^. 

4.  How  Removable. 

They  shall  be  removed  on  impeachment  for  and  convic- 
tion of  treason^  bribery,  and  other  high  crimes  and 
misdem,eanors.   64:. 


28S  ANALYSIS  OF   CIVIL  GOVERNMENT.      [Pabt  II. 

5.  Salary. 

The  judges  shall^  at  stated  times,  receive  for  their  ser- 
vices a  compensation,  xchich  shall  not  he  diminished 
during  their  continuance  in  office.   60. 
§  1.  The  mode  of  appointing  the  judges  has  been  noticed  in  treat- 
ing of  the  executive  powers.     The  power  is  expressly  given  to  the 
President  in  the  Constitution,  by  and  with  the  advice  and  consent 
of  the  Senate,  to  appoint  the  judges  of  the  Supreme  Court ;  but 
nothing  is  said  therein  about  the  method  of  appointing  the  judges  of 
the  inferior  courts.     There  is  no  question,  however,  with  regard  to 
the  judges  of  the  circuit  courts ;  for  they  are  judges  of  the  Supreme 
Court  also. 

§  2.  But  whether  the  judges  of  the  district  courts,  and  the 
Supreme  Court  of  the  District  of  Columbia,  are  inferior  officers  in 
the  Constitutional  sense,  so  that  Congress  may  provide  for  their 
appointment,  has  never  been  settled  by  adjudication.  But,  thus 
far,  the  uniform  practice  has  been  to  regard  them  not  as  inferior 
officers ;  but  their  appointments  have  been  made  by  the  President, 
with  the  concurrence  of  the  Senate,  the  same  as  judges  of  the 
Supreme  Court.  The  oath  of  office  of  all  Federal  judicial  officers 
is  the  same  as  that  of  officers  of  the  other  departments  of  govern^ 
ment. 

§  3.  There  are  several  reasons  why  the  tenure  of  office  of  the 
judges  should  be  made  permanent  and  secure,  depending  only  on 
their  good  behavior. 

1st.  That  they  may  be  independent  and  fearless  in  the  discharge  of 
their  responsible  duties,  it  is  necessary  that  they  should  hold 
by  the  will  of  no  man,  or  set  of  men.  They  must  feel 
dependent  on  no  earthly  power  for  their  continuance  in  office. 
After  appointment,  were  they  in  any  manner  dependent  on 
executive,  legislative,  or  popular  favor,  the  scales  of  justice 
might  be  doubtfully  balanced,  and  confidence  in  the  judiciary 
would.be  seriously  disturbed. 
2d.  This  independence  could  hardly  be  expected  from  judges  who 
hold  their  offices  by  a  temporary  tenure.  Periodical  appoint- 
ments, however  regulated,  or  by  whomsoever  made,  would, 


Part  II.]  judicial  dbpaetmeih:.  289 

in  some  way  or  other,  be  fatal  to  their  necessary  independ- 
ence. 
3d.  If  the   power  of  making  them  were  committed  cither  to  the 
executive  or  legislature,  there  would  be  danger  of  an  improp- 
er complaisance  to   the   branch  which  possessed  it ;  if  to 
both,  there  would  be  an  unwillingness  to  hazard  the  displeas- 
ure of  either ;  if  to  the  people,  there  would  be  too  great  a 
disposition  to  consult  popularity,  to  justify  a  reliance  that 
nothing  would  be  consulted  but  the  Constitution  and  the 
laws.^ 
§  4.  The  subject  of  removal  of  Federal  officers  by  impeachment 
has  been  fully  considered  in  other  places  in  this  work.     The  judges 
of  the   Supreme   and  inferior  courts  are  subject  to  removal  for 
impeachable  offenses. 

§  5.  Provision  is  wisely  made,  that,  as  the  judge's  salary  is  at  the 
time  he  enters  on  the  duties  of  his  office,  so  it  shall  continue  to  be 
throughout  his  official  existence,  unless  Congress  shall  see  fit  to  in- 
crease it.  In  other  words,  it  can  not  be  diminished.  To  allow  the 
legislative  authority  to  diminish  the  salaries  of  the  judges  would  be 
to  give  that  autnority  control  over  their  support ;  and  to  control  their 
support  is  to  control  their  will. 

The  salary  of  the  chief  justice  is  $6,500  a  year ;  that  of  the  asso- 
ciate justices  is  $6,000  each.  In  the  tenth  circuit,  constituted  of 
California  and  Oregon,  the  associate  justice  has  $1,000  a  year  al- 
lowed in  addition  to  his  salary,  for  traveling-expenses. 

art.  iii.— jurisdiction. 
1.  Limitation. 

The  judicial  power  of  the  United  States  shall  extend  to 
all  cases  of  law  and  equity  arising^ 

\st.   Under  the  Constitution  of  the  United  States  ; 
2d.    Under  the  laws  of  the  United  States ;  and^ 
dd.    To  treaties  made^  or  which  shall   be    madcy 
under  their  authority.   66. 
§  1.  By  judicial  power,  as  here  used,  we  are  to  understand  the 

1  Federalist,  No.  78. 
10 


290  ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 

power  of  the  national  courts  in  the  administration  of  justice.  The 
word  "power"  refers  to  jurisdiction,  or  the  authority  of  the  court, 
over  causes  which  must  include  the  subject-matter  as  well  as  the 
parties  concerned. 

The  subject-matter  of  a  cause  in  court  is  the  thing  or  question 
to  be  decided :  the  parties  are  the  persons  or  corporations  legally 
interested  in  the  decision  of  the  court  on  the  subject-matter. 

§  2.  The  word  "law"  is  generally  understood,  as  defined  by  law- 
writers,  to  be  the  supreme  power  of  the  State,  through  its  legisla- 
ture, commanding  what  is  right,  and  prohibiting  what  is  wrong.  The 
word  "equity,"  as  applied  to  judicial  proceedings,  does  not  mean  con- 
trary to  law ;  but  it  reaches  cases  to  which  the  law  can  not  be  applied 
by  reason  of  its  universality.  The  object  of  equity  jurisprudence 
is  to  supply  the  deficiencies  of  the  courts  of  law,  and  to  render  the 
administration  of  justice  more  complete,  by  affording  relief  where  the 
courts  of  law,  in  consequence  of  imperfections  of  their  machinery  or 
of  their  too  rigid  adherence  to  peculiar  forms,  are  incompetent  to 
give  it,  or  to  give  it  with  effect.-^ 

§  3.  The  judicial  power  of  the  United  States  extends  to  all  cases 
of  law  and  equity  arising  under  the  Constitution  and  laws  thereof, 
and  to  treaties  made  under  their  authority.  But  there  are  two  kinds 
of  jurisdiction,  original  and  appellate.  Original  jurisdiction  is  juris- 
diction of  a  cause  from  its  beginning.  If  a  party  can  begin  his 
suit  in  the  circuit  court,  for  instance,  we  say  the  circuit  court  has 
original  jurisdiction  in  the  case.  If  he  can  not  bring  his  case  into 
that  court  until  it  has  been  first  tried  in  some  lower  court,  then  we 
say  the  circuit  court  has  appellate  jurisdiction.  Some  kinds  of  causes 
can  be  commenced  in  either  of  two  different  courts.  Such  courts, 
in  such  cases,  are  said  to  be  courts  of  concurrent  jurisdiction ;  that 
is,  either  court  has  jurisdiction  of  such  a  cause.  If  there  is  but 
one  court  in  which  a  case  can  be  brought,  that  court  is  said  to  have 
exclusive  jurisdiction.  The  Supreme  Court  of  the  United  States  has 
original  or  appellate  jurisdiction  in  all  cases  arising  under  the  Con- 
stitution and  laws  of  the  United  States,  and  under  treaties,  as  afore- 
said. ■> 

1  Blackstone. 


Part  II.]  JUDICIAL  DEPARTMENT.  291 

2.  Original. 

The  Supreme  Court  shall  have  original  jurisdiction, 
1st.  In  all  cases  affecting  ambassadors  ; 
2d.    Other  public  ministers^  and  consuls  ; 
3c?.  In  controversies  between  two  or  more  States  / 
4^A.  Between  a  State  and  citizens  of  another  State  ; 
bth.  Between  a  State  and  foreign  States^  citizens,  or 

subjects  ; 
^th.  Between  the  citizens  of  a   State    and  foreign 

States,  citizens,  or  subjects.   06,  67. 
*lth.  But  the  judicial  power  of  the  United  States  shall 
not  be  construed  to  extend  to  any  suit  in  law 
or  equity  commenced  or  prosecuted, 
1st.  Against  one  of  the  United  States  by  citizens 

of  another  State  ;  or, 
2d.   By  citizens  or  subjects  of  a  foreign  State, 
93. 
§  4.  There  are  but  two  classes  of  cases  in  which  the  Supreme 
Court  of  the  United  States  has  original  jurisdiction  :  and  these  are, 
first,  those  aiFecting  ambassadors,  other  public  ministers,  and  consuls ; 
and,  second,  those  cases  in  which  a  State  shall  be  a  party.    But,  as  will 
be  seen  by  reference  to  the  Analysis  in  this  article,  there  are  several 
cases  in  which  a  State  may  be  a  party,  either  as  plaintiff  or  defend- 
ant. 

§  5.  The  ambassadors,  other  public  ministers,  and  consuls,  allud- 
ed to,  refer  to  those  representing  or  acting  hx  foreign  governments. 
By  the  law  of  nations,  these  classes  of  officials  are  not  amenable  to 
the  laws  of  the  country  to  which  they  are  accredited  agents.  The 
country  in  which  they  reside  is  under  obligation  to  protect  them,  and 
their  rights  and  privileges  are  regulated  by  the  law  of  nations.  This 
being  the  case,  the  national  courts  only  should  be  allowed  to  take 
cognizance  of  matters  affecting  their  interests,  which  should  be 
decided  by  the  highest  tribunal  of  the  land. 

§  6.  In  controversies  between  two  or  more  States,  there  is  no  tri- 
bunal before  which  there  could  be  a  peaceable  and  impartial  deter- 
mination of  questions,  except  the  Federal  courts.     Of  course,  the 


292  ANALYSIS   OF  CIVIL  GO VEENMENT.     [Part  II. 

courts  of  neither  of  the  States  litigant  could  be  regarded  as  disinter- 
ested ;  and  they  have  no  common  judicatory  between  them. 

§  7.  Controversies  may  arise  between  a  State  and  the  citizens  of 
a  neighboring  State.  It  is  manifestly  more  proper  that  the  State 
should  prosecute  its  demands  before  a  Federal  court  than  to  proceed 
in  the  courts  of  the  State  to  which  the  defendants  belong.  The 
State  courts  would  be  liable  to  the  charge  of  partiality,  and  ob- 
noxious to  suspicion  and  censure,  decide  whichever  way  they  might. 

§  8.  Controversies  arising  between  States  of  the  Union  and  for- 
eign States,  citizens,  or  subjects,  can  more  properly  be  referred  to 
the  national  courts  than  to  the  courts  of  the  States  interested  as 
parties.  The  decisions  in  all  such  cases  ought  to  carry  with  them 
that  confidence  sure  to  be  inspired  by  national  authority. 

§  9.  The  same  reasons  apply  to  controversies  between  the  citizens 
of  a  State  and  foreign  States,  citizens,  or  subjects.  In  the  course 
of  complicated  and  extensive  commercial  transactions,  foreigners  or 
foreign  States  may  find  it  necessary  to  appeal  to  our  courts  for  re- 
lief or  satisfaction, 

§  10.  It  must  be  noticed  particularly,  however,  that  no  State  can 
be  prosecuted  by  the  citizens  of  another  State,  or  a  citizen  of  any 
foreign  State.  The  State  may  be  plaintiff  against  an  individual, 
but  can  not  be  made  defendant  at  the  suit  of  a  citizen  of  another 
State,  or  a  citizen  of  a  foreign  State. 

It  is  inherent  in  the  nature  of  sovereignty  not  to  be  amenable  to 
the  suit  of  an  individual  without  its  consent.  This  is  the  general 
sense  and  the  general  practice  of  mankind ;  and  this  exemption,  as 
one  of  the  attributes  of  sovereignty,  is  now  enjoyed  by  the  govern- 
ment of  every  State  in  the  Union.^ 

§  11.  The  Constitution  gives  the  Supreme  Court  original  juris- 
diction in  all  cases  in  which  a  State  shall  be  a  party;  and  this  was 
construed  during  the  first  few  years  after  the  adoption  of  the  Con- 
stitution to  authorize  suits  against  States  brought  by  individuals. 
Many  suits  were  brought  to  enforce  claims  held  by  individuals 
against  the  States.     This  led  to  the  adoption  of  the  eleventh  Article 

1  Federalist,  No.  81. 


Part  II.]  JUDICIAL  DEPARTMENT.  298 

of  Amendments  to  the  Constitution,  paragraph  93  of  thafc  instru- 
ment, which  is  in  these  words  :  — 

*'  The  judicial  power  of  the  United  States  shall  not  be  construed 
to  extend  to  any  suit  in  law  or  equity  commenced  or  prosecuted 
against  one  of  the  United  States  by  citizens  of  another  State,  or  by 
citizens  or  subjects  of  any  foreign  State." 

§  12.  How  is  a  person  to  obtain  relief,  then,  in  case  he  has  a 
claim  against  a  State  ?  In  the  first  place,  it  is  presumed  that  no 
wise  government  will  withhold  justice  from  its  citizens.  The  citi- 
zen to  whom  the  State  may  be  indebted  can  petition  the  legislature 
direct  for  redress,  unless  some  other  means  have  been  instituted  by 
the  State.  In  some  of  the  States,  courts  of  claims  have  been  estab- 
lished for  the  same  purpose,  into  which  the  citizen  can  bring  his 
claim,  by  petition  or  otherwise,  for  adjudication  ;  and,  if  he  shows 
the  State  to  be  indebted  to  him,  the  legislature  will  make  provision 
for  payment. 

§  13.  In  1855,  a  court  of  claims  was  established,  by  act  of  Con- 
gress, to  hear  and  determine  claims  against  the  United  States. 
The  demand  is  presented  to  the  court  by  petition,  setting  forth 
specifically  its  origin  and  nature ;  and  the  party  is  allowed  to  prove 
it  by  the  same  rules  of  evidence  that  are  usually  adopted  in  courts 
of  justice.  If  a  claim  is  established,  Congress  makes  provision  for 
its  payment.  An  attorney,  called  the  solicitor  of  the  United  States, 
appears  in  behalf  of  the  government  before  this  court. 

§  14.  These  are  all  the  cases  in  which  the  Supreme  Court  of  the 
United  States  has  original  jurisdiction.  And,  as  already  stated, 
they  are  all  included  in  two  classes  :  first,  such  as  affect  ambassadors, 
other  public  ministers,  and  consuls ;  and,  second,  all  those  cases  in 
which  a  State  shall  be  a  party. 

3.  Appellate. 

The  Supreme  Court  shall  have  appellate  jurisdiction^ 
both  as  to  law  and  fact,  with  such  exceptions,  and 
under  sutch  regidations,  as  the  Congress  shall  make, 
Ist.  In  all  cases  of  admiralty  and  maritime  juris- 
diction. 


294  ANALYSIS    OF   CIVIL   GOVERNMENT.     [Part  II. 

2d,    In  controversies  in  which  the  United  States  shall  be 

a  party  ; 
Zd.    Between  citizens  of  different  States  ; 
Ath.  Between  citizens  of  the  same  State  claiming  lands 
under  grants  of  different  States. 

§  15.  What  is  meant  by  appellate  jurisdiction  has  akeady  been 
explained.  By  cases  of  admiralty  and  maritime  jurisdiction,  refer- 
ence is  had  to  the  power  to  try  and  determine,  on  appeal,  all  causes 
originating  on  the  high  seas,  or  on  rivers,  ports,  or  harbors  com- 
municating with  the  sea,  and  out  of  the  reach  of  ordinary  courts 
of  justice.  Admiralty  causes  must  arise  wholly  on  the  sea  or  on 
waters  immediately  communicating  with  the  sea,  and  not  within 
the  jurisdiction  of  any  country.  On  the  high  seas,  all  nations 
claim  a  common  right  and  a  common  jurisdiction ;  and  therefore 
causes  originating  there  should  come  exclusively  under  the  juris- 
diction of  the  national  courts.  They  can  not  be  brought,  how- 
ever, in  the  first  instance,  into  the  Supreme  Court  of  the  United 
States,  but  may  be  appealed  into  that  court  after  having  been  com- 
menced and  tried  by  a  district  court  of  the  United  States,  which, 
by  a  law  of  Congress,  is  an  admiralty  court. 

§  16.  The  subjects  for  adjudication  which  properly  come  into 
courts  of  admiralty  are,  captures  in  war  made  on  the  high  seas, 
captures  in  foreign  ports  and  harbors,  captures  made  on  land  by 
naval  forces,  and  captures  made  in  the  rivers,  ports,  and  harbors 
of  the  captor's  own  country.  If  an  American  commissioned  with 
letters  of  marque  and  reprisal  shall  make  captures  as  aforesaid,  it 
is  his  duty  to  bring  them  into  the  court  for  adjudication.  If  the 
court  shall  decide  that  the  things  in  controversy  were  lawfully  cap- 
tured, and  according  to  the  usages  of  war  and  law  of  nations,  they 
are  awarded  to  the  captors.  If  the  decision  is  that  they  were  un- 
lawfully seized,  they  will  be  awarded  by  the  court  to  the  owners 
with  damages  for  detention. 

§  17.  The  ordinary  admiralty  and  maritime  jurisdiction  also 
embraces  all  civil  and  criminal  cases  of  a  marine  nature.  The 
district  courts  of  the  United  States,  however,  as  courts  of  admi- 
ralty and  maritime  jurisdiction,  are  limited  to  the  trial  of  crimes 


Part  II.]  JUDICIAL  DEPARTMENT.  295 

and  offenses  for  which  but  moderate  punishment  is  inflicted.  The 
graver  and  higher  crimes  are  referred  to  the  circuit  courts  as  courts 
of  admiralty. 

§  18.  Controversies  in  which  the  United  States  shall  be  a  party 
are  to  be  adjudicated  in  the  Federal  courts.  Cases  in  which  the 
whole  people  are  interested  should  not  be  left  to  the  decision  of  a 
State  court.  The  United  States  must  bring  suit,  however,  in  the  first 
instance,  in  the  inferior  courts, — that  is,  in  the  district  or  circuit 
courts,  —  and  can  not  reach  the  Supremo  Court  except  by  appeal. 

§  19.  Unless  this  power  were  given  to  the  United  States,  the  en- 
forcement of  all  their  rights,  powers,  contracts,  and  privileges,  in 
their  sovereign  capacity,  would  be  at  the  mercy  of  the  States.  They 
must  be  enforced,  if  at  all,  in  the  State  tribunals ;  and  there 
would  not  only  not  be  any  compulsory  power  over  those  courts  to 
perform  such  functions,  but  there  would  not  be  any  means  of  pro- 
ducing uniformity  in  their  decisions.^ 

§  20.  By  act  of  Congress,  a  citizen  of  one  State  may  bring  suit 
against  a  citizen  of  another  in  the  cii-cuit  court  of  the  United  States 
in  civil  matters,  provided  the  matter  in  controversy  exceeds  five  hun- 
dred dollars  exclusive  of  costs.  An  alien  may  sue  or  be  sued  in 
this  court  also  for  the  same  amount.  And  these  courts  have  original 
jurisdiction  also  in  matters  relating  to  the  United-States  revenue  and 
to  copyrights,  being  cases  that  arise  under  the  laws  of  the  United 
States.  In  all  these  cases,  the  Supreme  Court  has  appellate  jurisdic- 
tion only. 

An  appeal  may  be  taken  from  the  district  court  to  the  circuit  court, 
and  from  the  circuit  to  the  Supreme  Court,  under  certain  restrictions 
and  limitations. 

§  21.  Controversies  between  citizens  of  the  same  State,  claiming 
lands  under  grants  of  different  States,  must  be  adjudicated  in  the 
United-States  courts.  State  courts  can  not  be  supposed  to  be  unbi- 
ased in  cases  of  this  nature.  Claims  to  lands  under  grants  of  dif- 
ferent States,  founded  on  adverse  pretensions  of  boundary,  would 
almost  forbid  the4)ossibiUty  of  judicial  fairness,  candor,  and  impar- 
tiality on  the  part  of  the  State  courts  of  either  granting  State.    The 

1  Story  on  Const.,  §  1,674. 


296 


ANALYSIS   OF   CIVIL  GOVERNMENT.     [Pakt  IL 


State  laws  may  have  even  prejudged  the  question,  and  tied  the 
courts  down  to  decisions  in  favor  of  the  grants  of  the  State  to  which 
they  belonged.  And,  where  this  has  not  been  done,  it  would  be  nat- 
ural that  the  judges,  as  men,  should  feel  a  strong  predilection  for 
the  claims  of  their  own  government.^  And,  at  all  events,  the  pro- 
viding of  a  tribunal,  having  no  possible  interest  on  the  one  side  more 
than  the  other,  would  have  a  most  salutary  tendency  in  quieting  the 
jealousies  and  disarming  the  resentments  of  the  State  whose  grant 
should  be  held  invalid.^ 

§  22.  The  following  is  a  list  of  the  Chief  Justices  of  the  United 
States  from  the  establishment  of  the  Supreme  Court  in  1789  to 
1868,  with  the  dates  of  appointment :  — 

John  Jay,  New  York,  Sept.  26,  1789.     Kesigned. 

John  Rutledge,  South  Carolina,  July  1,  1795.  Mr.  Rutledge 
was  appointed  during  the  recess  of  the  Senate,  presided  over  the 
Supreme  Court  one  term,  was  nominated  Dec.  10,  1795,  and  re- 
jected by  the  Senate. 

William  Cushing,  Massachusetts,  Jan.  27,  1796.     Declined. 

Oliver  Ellsworth,  Connecticut,  March  4,  1796.     Resigned. 

John  Jay,  New  York,  re-appointment,  Doc.  19,  1800.   Declined. 

John  Marshall,  Virginia,  Jan.  81,  1801.    Died  July  6, 1835. 

Roger  B.  Taney,  Maryland,  March  15,  1836.     Died  1864. 

Salmon  P.  Chase,  Ohio, ,  1864. 


CHAPTER   XV. 

ART.  I.  — PRESIDENTS  OF  THE  UNITED  STATES. 

1.  George  Washington,  of  Virginia,  inaugurated  April  30, 
1789.  Term  expired  March  4,  1793.  Re-elected.  Second  in- 
auguration, March   4,  1793. 

John  Adams,  of  Massachusetts,  entered  on  the  duties  of  his 
office  as  Vice-President,  and  President  of  the  Senate,  April  21, 1789, 
but  did  not  take  the  oath  of  office  until  June  3, 1789.  Re-elected* 
Took  the  oath  of  office,  Dec.  2, 1793. 

1  Federalist,  No.  80.  *  Story  on  Const.,  §  1,696. 


Part  II.]      PRESIDEKTS  OF  THE  UNITED  STATES.  297 

2.  John  Adams,  of  Massachusetts,  inaugurated  President  of  the 
United  States,  March  4,  1797. 

Thomas  Jefferson,  of  Virginia,  took  the  oath  of  office  as  Vice- 
President,  March  4,  1797. 

3.  Thomas  Jefferson,  of  Virginia,  inaugurated  President  of  the 
United  States,  March  4,  1801. 

Aaron  Burr,  of  New  York,  took  the  oath  of  office  as  Vice- 
President,  March  4,  1801. 

Thomas  Jefferson  re-elected.  Second  inauguration,  March  4, 
1805. 

George  Clinton,  of  New  York,  took  the  oath  of  office  as  Vice- 
President,  March  4,  1805. 

4.  James  Madison,  of  Virginia,  inaugurated  President,  March 
4,  1809. 

George  Clinton  took  the  oath  of  office  as  Vice-President,  March 
4,  1809. 

James  Madison  re-elected.  Second  inauguration  as  President, 
March  4,  1813. 

Elbridge  Gerry,  of  Massachusetts,  took  the  oath  of  office  as 
Vice-President.  Entered  on  the  duties  of  President  of  the  Senate, 
May  24,  1813. 

5.  James  Monroe,  of  Virginia,  inaugurated  President,  March 
4,  1817. 

Daniel  D.  Tompkins,  of  New  York,  took  the  oath  of  office  as 
Vice-President,  March  4,  1817. 

James  Monroe  re-elected  President,  and  Daniel  D.  Tompkins 
as  Vice-President,  from  March  4,  1821. 

6.  John  Quincy  Adams,  of  Massachusetts,  son  of  the  second 
President  of  the  United  States,  was  inaugurated  President,  March 
4,  1825. 

John  C.  Calhoun,  of  South  Carolina,  took  the  oath  of  office  as 
Vice-President,  March  4,  1825. 

7.  Andrew  Jackson,  of  Tennessee,  inaugurated  President, 
March  4,  1829. 

John  C.  Calhoun,  of  South  CaroHna,  took  the  oath  of  office  as 
Vice-President,  March  4,  1829. 


298  ANALYSIS   OF  CIVIL  GOVERNMENT.     [Part  II. 

Andrew  Jackson  re-elected.     Inaugurated  March  4,  1833. 
Martin  Van  Buren,  of  New  York,  took  the  oath  of  office  as 
Vice-President,  March  4,  1833. 

8.  Martin  Van  Buren,  of  New  York,  inaugurated  President, 
March  4,  1837. 

Richard  M.  Johnson,  of  Kentucky,  took  the  oath  of  office  as 
Vice-President,  March  4,  1837.  The  only  Vice-President  of  the 
United  States  ever  elected  by  the  Senate. 

9.  William  Henry  Harrison,  of  Ohio,  inaugurated  President, 
March  4,  1841. 

John  Tyler,  of  Virginia,  took  the  oath  of  office  as  Vice-Presi- 
dent, March  4,  1841. 

President  Harrison  died  April  4,  1841,  — just  one  month  after 
his  inauguration. 

John  Tyler  took  the  oath  of  office  as  President  of  the  United 
States,  April  6,  1841. 

10.  James  Knox  Polk,  of  Tennessee,  inaugurated  President, 
March  4,  1845. 

George  Mifflin  Dallas,  of  Pennsylvania,  inaugurated  and 
took  the  oath  of  office  as  Vice-President,  March  4,  1845. 

11.  Zachary  Taylor,  of  Louisiana,  inaugurated  President, 
March  5,  1849. 

Millard  Fillmore,  of  New  York,  took  the  oath  of  office  as  Vice- 
President,  March  5,  1849. 

President  Taylor  died  July  9,  1850  ;  having  been  in  office  one 
year,  four  months,  and  five  days. 

Millard  Fillmore  took  the  oath  of  office  as  President  of  the 
United  States,  July  10,  1850. 

12.  Franklin  Pierce,  of  New  Hampshire,  inaugurated  Presi- 
dent, March  4,  1853. 

William  R.  King,  of  Alabama,  took  the  oath  of  office  as  Vice- 
President,  March  4,  1853.  Died  April  18,  1853.  Office  vacant 
remainder  of  the  term. 

13.  James  Buchanan,  of  Pennsylvania,  inaugurated  President, 
March  4,  1857. 

John  C.  Breckinridge,  of  Kentucky,  took  the  oath  of  office 
as  Vice-President,  March  4,  1857. 


Part  II.]  STATE  DEPAETMENT.  299 

14.  Abraham  Lincoln,  of  Illinois,  inaugurated  President, 
March  4,  1861. 

Hannibal  Hamlin,  of  Maine,  took  the  oath  of  office  as  Vice- 
President,  March  4,  1861. 

Abraham  Lincoln  re-elected.  Second  inauguration,  March  4, 
1865. 

Andrew  Johnson,  of  Tennessee,  took  the  oath  of  office  as  Vice- 
President,  March  4,  1865. 

Abraham  Lincoln  assassinated  April  14, 1865,  and  died  the  next 
morning,  April  15. 

Andrew  Johnson  took  the  oath  of  office  as  President  of  the 
United  States,  April  15,  1865. 


ART.  II.  — STATE  DEPARTMENT. 

§  1.  The  department  of  State  was  created  by  act  of  Congress, 
Sept.  15,  1789.  Before  that,  it  was  called  the  department  of 
Foreign  Affairs,  having  been  created  as  such  by  act  of  July  27, 
1789.  This  department  is  under  the  charge  of  the  Secretary  of 
State  ;  and  the  business-affairs  of  it  are  divided  into  several  branches, 
each  branch  having  a  principal  clerk  at  its  head. 

§  2.  This  department  has  charge  of  the  correspondence  with  the 
diplomatic  agents  of  the  government  in  foreign  countries,  and  with 
the  agents  of  foreign  nations  received  and  accredited  by  the  United 
States.  All  communications  with  commissioners  relating  to  bound- 
ary treaties,  and  all  diplomatic  instructions,  issue  from  this  depart- 
ment; and  a  faithful  record  of  them  is  kept,  as  well  as  a  record  of 
similar  documents  received  from  foreign  powers. 

§  3.  All  the  acts  and  resolutions  of  Congress  are  filed  by  the 
President  in  this  department ;  and  their  publication  in  newspapers 
or  in  book  form,  and  their  distribution  throughout  the  country, 
belong  to  the  State  Department ;  also  all  treaties  and  other  business 
with  the  Indian  tribes.  There  is  an  office  connected  with  this 
department,  in  which  the  translation  of  documents  from  other 
languages  into  English  is  the  principal  business. 

§  4.  There  is  a  clerk  of  pardons  and  passports  connected  with 


300 


ANALYSIS   OF   CIVIL  GOVERNMENT.    [Part  11. 


this  department.  The  petitions  and  papers  are  filed  with  this  clerk, 
on  which  pardons  are  founded.  Passports  are  prepared  by  him, 
and  a  record  of  them  kept,  which  are  issued  by  the  department  of 
State.  The  statistics  relating  to  the  foreign  commerce  of  the 
United  States  are  filed  and  preserved  in  this  department,  under  the 
direction  of  a  superintendent  of  statistics. 

§  5.  The  heads  of  all  the  executive  departments  are  nominated 
and  appointed  by  the  President,  by  and  with  the  advice  and  consent 
of  the  Senate.  The  following  is  a  catalogue  of  the  Secretaries  of 
State,  beginning  with  the  first  year  under  our  Constitution :  — 


Name. 

Residence. 

When  appointed. 

Thomas  Jefferson, 

Virginia, 

Sept.  26, 

1789. 

Edmund  Randolph, 

Virginia, 

Jan.     2, 

1794. 

Timothy  Pickering, 

Massachusetts, 

Dec.  10, 

1795. 

John  Marshall, 

Virginia, 

May   13, 

1800. 

James  Madison, 

Virginia, 

March  5, 

1801. 

Robert  Smith, 

Maryland, 

March  6, 

1809. 

James  Monroe, 

Virginia, 

Nov.  25, 

1811. 

John  Q.  Adams, 

Massachusetts, 

March  3, 

1817. 

Henry  Clay, 

Kentucky, 

March  8, 

1825. 

Martin  Van  Buren, 

New  York, 

March  6, 

1829. 

Edward  Livingston, 

Louisiana, 

May  24, 

1831. 

Louis  McLane, 

Delaware, 

May  29, 

1833. 

John  Forsyth, 

Georgia, 

June  27, 

1834. 

Daniel  Webster, 

Massachusetts, 

March  5, 

1841. 

Hugh  S.  Legare, 

South  Carolina, 

May     9, 

1843. 

Abel  P.  Upsher, 

Virginia, 

June  24, 

1843. 

John  C.  Calhoun, 

South  Carolina, 

March  6, 

1844. 

James  Buchanan, 

Pennsylvania, 

March  5, 

1845. 

John  M.  Clayton, 

Delaware, 

March  7, 

1849. 

Daniel  Webster, 

Massachusetts, 

July  20, 

1850. 

Edward  Everett, 

Massachusetts, 

Dee.     9, 

1852. 

William  L.  Marcy, 

New  York, 

March  7, 

1853. 

Lewis  Cass, 

Michigan, 

March  6, 

1857. 

Jeremiah  S.  Black, 

Pennslyvania, 

Dec.  17, 

1860. 

William  H.  Seward, 

New  York, 

March  5, 

1861. 

Part  II.]  TREASUKY  DEPARTMENT.  301 

ART.  III.  —TREASURY  DEPARTMENT. 

§  1.  The  Treasury  Department  dates  from  1789.  It  is  under 
charge  of  the  Secretary  and  Assistant  Secretary  of  the  Treasury. 
This  department  has  charge  of  all  moneys  paid  into  the  treasury  of 
the  United  States  ;  has  the  general  supervision  of  the  fiscal  trans- 
actions of  the  government;  attends  to  the  collection  of  the  revenue, 
the  auditing  and  payments  of  accounts,  or  other  disbursements  ;  and 
sees  to  the  execution  of  the  laws  relating  to  the  commerce  and  navi- 
gation of  the  United  States. 

§  2.  This  department  also  has  charge  of  the  coast  survey,  the 
mint  and  coinage  of  money,  the  hght-house  establishments,  the 
erection  of  marine  hospitals  and  custom-houses.  By  act  of  Con- 
gress, May  10,  1810,  it  is  made  the  duty  of  the  Secretary  of  the 
Treasury  to  prepare  and  report  to  Congress,  at  the  opening  of  every 
regular  session,  the  financial  condition  of  the  United  States,  to 
furnish  estimates  of  the  revenue  and  disbursements  of  the  treasury, 
and  to  give  information  in  reference  to  the  most  economic  means  of 
furnishing  money  to  meet  the  claims  against  the  government. 

§  3.  There  are  a  chief  clerk,  controller,  second  controller,  com- 
missioner of  customs,  six  auditors,  and  a  large  number  of  other 
assistants  of  various  positions  and  titles,  employed  in  this  depart- 
ment, having  their  respective  duties  to  perform.  The  first  con- 
troller prescribes  the  mode  of  keeping  and  rendering  accounts  for 
the  civil  and  diplomatic  semce,  as  well  as  the  public  lands. 

The  second  controller  prescribes  the  mode  of  keeping  and  render- 
ing the  accounts  of  the  army  and  navy,  and  of  the  Indian  and 
Pension  Bureaus. 

The  commissioner  of  the  customs  prescribes  the  mode  of  keeping 
and  rendering  the  accounts  of  the  customs  revenue  and  dis- 
bursements, and  for  the  building  and  repairing  the  custom-houses, 

&C.1 

The  business  of  the  sixth  auditor  relates  chiefly  to  the  interests 
of  the  Post-office  Department. 

§  4.  The  following  is  a  list  of  the  Secretaries  of  the  Treasury, 

^  Lanman'g  Congressional  Dictionary. 


302 


ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 


beginning  with  the  organization   of  our  present  form  of   govern- 
ment :  — 


Name. 

Residence. 

"When  appointed. 

Alexander  Hamilton, 

New  York, 

Sept.  11,  1789. 

Oliver  Wolcott, 

Connecticut, 

Feb.     3,  1795. 

Samuel  Dexter, 

Massachusetts, 

Dec.   31,  1800. 

Albert  Gallatin, 

Pennsylvania, 

Jan.  26,  1802. 

George  W.  Campbell, 

Tennessee, 

Feb.    9,  1814. 

Alexander  J.  Dallas, 

Pennsylvania, 

Oct.     6,  1814. 

William  H.  Crawford, 

Georgia, 

March  5,  1817. 

Richard  Rush, 

Pennsylvania, 

March  7,  1825. 

Samuel  D.  Ingham, 

Pennsylvania, 

March  6,  1829. 

Louis  McLane, 

Delaware, 

Aug.    8,1831. 

William  J.  Duane, 

Pennsylvania, 

May   29,  1833. 

Roger  B.  Taney,i 

Maryland, 

Sept.  23,  1833 

Levi  Woodbury, 

New  Hampshire 

June  27,  1834. 

Thomas  Ewing, 

Ohio, 

March  5,  1841. 

Walter  Forward, 

Pennsylvania, 

Sept.  13.  1841. 

George  M.  Bibb, 

Ohio, 

June  15,  1844. 

Robert  J.  Walker, 

Mississippi, 

March  5,  1845. 

William  M.  Meredith, 

Pennsylvania, 

March  7,  1849. 

Thomas  Corwin, 

Ohio,       - 

July  20,  1850. 

James  Guthrie, 

Kentucky, 

March  7,  1853. 

Howell  Cobb, 

Georgia, 

March  5,  1857. 

Philip  F.  Thomas, 

Maryland, 

Dec.   12,  1860. 

John  A.  Dix, 

New  York, 

Jan.   11,  1861. 

Salmon  P.  Chase, 

Ohio, 

March  5,  1861. 

William  P.  Fessenden, 

Maine, 

July     1,  1864. 

Hugh  McCulloch, 

Indiana, 

March  7,  1865. 

ART.  IV.  — WAR  DEPARTMENT. 


§  1.  This  department  has  charge  of  all  business  growing  out  of 
the  military  affairs  and  interests  of  the  government.     It  keeps  the 

1  Kejected  by  the  Senate. 


Part  II.]  WAR  DEPARTMENT,  303 

record  of  the  army,  issues  military  commissions,  directs  the  move- 
ments of  troops,  and  superintends  their  payment.  It  also  has  the 
custody  of  all  military  stores,  clothing,  arms,  and  equipments.  It 
suparvises  the  construction  of  all  mihtary  structures,  and  conducts 
all  works  of  military  engineering. 

§  2.  The  War' Department  is  in  the  charge  of  the  Secretary  of  War, 
who  is  assisted  by  one  regular  assistant  and  two  temporary  assistants, 
and  a  laro-e  number  of  clerks,  one  of  whom  ^s  called  the  chief  clerk. 
This  department  is  also  divided  into  several  branches  called  bureaus, 
takinji  their  several  names  from  the  offices  in  which  the  business  of 
each  is  transacted. 

§  3.  The  commanding-general's  office  has  the  arrangement  of  all 
the  miHtaiy  forces,  the  superintendence  of  the  recruiting  service,  and 
the  discipline  of  the  army.  The  adjutant-general's  office  keeps  the 
records  and  rolls  of  the  army :  from  this  office  the  miUtaiy  commis- 
sions are  sent  out,  and  all  orders  emanating  from  headquarters.  The 
quartermaster-general's  bureau  has  charge  of  the  supply-system, 
control  of  the  barracks,  and  furnishes  the  clothing  and  transportation 
of  the  army. 

§  4.  The  disbursements  of  money  to  the  army  are  made  through  the 
paymaster-general's  office  ;  the  purchase  and  issue  of  rations,  through 
the  commissary-general's  office  :  surgical  and  medical  suppHes  and 
attendance,  the  management  of  the  sick  and  wounded  soldiers,  and 
the  care  of  military  hospitals,  are  under  the  surgeon-general's  direc- 
tion. There  is  an  engineer's  bureau,  having  the  direction  of  all 
matters  connected  with  the  engineer  corps  of  the  army,  and  also 
the  care  of  the  military  academy  at  West  Point.  There  is  a  topo- 
graphical bureau,  which  has  the  superintendence  of  surveys  made  for 
military  purposes  and  for  purposes  of  internal  improvement;  and 
there  is  also  an  ordnance  bureau,  having  charge  of  the  arsenals 
and  armories,  the  manufacture  of  arms,  implements  of  war,  and 
the  keeping  of  all  ordnance-stores. 

§  5.  The  following  is  a  list  of  the  Secretaries  of  War  from  the 
organization  of  this  department :  — 


304 


ANALYSIS  OF   CIVIL  GOVERNMENT.     [Part  II. 


Name. 

Residence. 

When  appointed. 

John  Knox, 

Massachusetts, 

Sept.  12,  1789. 

Timothy  PicKEniNa, 

Massachusetts, 

Jan.     2,  1795. 

James  McIIenry, 

Maryland, 

Jan.  27,  1786. 

Samuel  Dexter, 

Massachusetts, 

.May  13,  1800. 

Roger  Griswoli>, 

Connecticut, 

Feb.     3,  1801. 

Henry  Dearborn, 

Massachusetts, 

March  4,  1801. 

AViLLIAM    EUSTIS, 

Massachusetts, 

March  7,  1809. 

John  Armstrong, 

New  York, 

Jan   19,  1813. 

James  Monroe, 

Virginia, 

Sept.  26,  1814. 

William  H.  Crawford, 

Georgia, 

March  2,  1815. 

Isaac  Shelby, 

Kentucky, 

March  5,  1817. 

John  C.  Calhoun, 

South  Carolina, 

Dec.  16,  1817. 

James  Barbour, 

Virginia, 

March  7,  1825. 

Peter  D.  Porter, 

New  York, 

May  26,  1828. 

John  H.  Eaton, 

Tennessee, 

March  9,  1829. 

Lewis  Cass, 

Ohio, 

Aug.    1,  1831. 

Joel  II .  Poinsett, 

South  Carolina, 

March  7,  1837. 

John  Bell, 

Tennessee, 

March  5,  1841. 

John  C.  Spencer, 

New  York, 

Oct.  12,  1841. 

James  M.  Porter, 

Pennsylvania, 

March  8,  1843. 

William  Wilkins, 

Pennsylvania, 

Feb.  15,  1844. 

William  L.  Marcy, 

New  York, 

March  5,  1845. 

George  W.  Crawford, 

Georgia, 

March  7,  1849. 

Charles  M.  Conrad, 

Louisiana, 

Aug.  15,  1850. 

Jefferson  Davis, 

Mississippi, 

March  5,  1853. 

John  B.  Floyd, 

Virginia, 

March  6,  1857. 

Joseph  Holt, 

Kentucky, 

Jan.  18,  1860. 

Simon  Cameron, 

Pennsylvania, 

March  5,  1861. 

Edwin  M.  Stanton, 

Pennsylvania, 

March,      1862. 

Edwin  M.  Stanton, 

Removed  August,    1867. 

Ulysses  S.  Grant,  Illinois 

appointed  ad  interim 

,  August,    1867. 

Edwin  M.  Stanton, 

Restorec 

I  January,  1868. 

Mr.  Stanton  resigned,  and  John  M.  Schofield  of  Missouri  was 
appointed  Secretary  of  War,  May  29,  1868. 


Part  II.]  NAVY  department.  805 

ART.  v.  — XAVY  DEPARTMENT. 

§  1.  Originally,  by  act  of  Congress,  Sept.  15, 1789,  the  Nary  De- 
partment was  included  with  the  War  Department,  and  both  branches 
were  called  the  War  Department.  They  were  separated,  however, 
April  30, 1789 ;  when  the  navy  division  was  established  as  a  distinct 
department, 

§  2.  The  Navy  Department  was  divided  Aug.  21, 1842,  at  which 
time  it  was  re-organized  into  five  bureaus  :  — 

1.  Bureau  of  navy-yards  and  docks. 

2.  Bureau  of  construction,  equipment,  and  repair. 

3.  Bureau  of  provisions  and  clothing. 

4.  Bureau  of  ordnance  and  hydrography. 

5.  Bureau  of  medicine  and  surgery. 

§  3.  Under  the  general  direction  of  the  President  of  the  United 
States,  the  Secretary  of  the  Navy  has  control  of  every  thing  con- 
nected with  the  naval  establishment,  and  the  execution  of  the  laws 
relating  to  it.  All  instructions  to  the  subordinate  officers  of  the 
navy,  the  enlistment  and  discharge  of  seamen,  and  orders  to  all 
the  dilTerent  bureaus,  are  issued  by  authority  of  the  Secretary  of  the 
Navy. 

§  4.  The  first  officers  of  the  different  bureaus  are  styled  the  chiefs 
of  the  bureaus.  As  in  the  bureaus  of  other  departments,  there  are 
a  large  number  of  clerks  employed  in  these.  The  bureau  of  navy-yards 
and  dock-yards  has  charge  of  these  yards,  and  all  wharves,  buildings, 
and  machinery  belonging  to  them  ;  and  also  of  the  naval  asylum. 

§  5.  The  second  bureau  named  has  charge  of  the  building  and 
repairs  of  all  vessels  of  the  navy,  and  every  thing  connected  with 
their  outfit  and  completion.  The  third  sees  to  the  provisions,  sup- 
plies, and  clothing  of  the  seamen ;  the  fourth  bureau  superintends 
the  ordnance  and  ordnance-stores,  and  attends  to  the  purchase  of 
all  necessary  naval  equipments ;  and  the  fifth  bureau  attends  to 
every  thing  relating  to  medical  stores,  the  treatment  of  the  sick  and 
wounded,  and  the  management  of  the  hospitals. 

§  G.  The  following  is  a  list  of  the  names  of  the  Secretaries  of  the 
Navy  since  its  organization  as  a  distinct  department,  with  the  dates 
of  their  appointments  :  — 

20 


ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 


Name. 

George  Cabot/ 
Benjamin  Stoddart, 
KoBERT  Smith, 
Jacob  Crowningshield, 
Paul  Hamilton, 
William  Jones, 
Benj.  W.  Crowningshield, 
Smith  Thompson, 
Samuel  L.  Southard, 
John  Branch, 
Levi  Woodbury, 
Mahlon  Dickinson, 
James  K.  Paulding, 
George  E.  Badger, 
Abel  P.  Upsher, 
David  Henshaw, 
Thomas  W.  Gilmer, 
John  Y.  Mason, 
George  Bancroft, 
John  Y.  Mason, 
William  B.  Preston, 
William  A.   Graham, 
John  P.  Kennedy, 
James  C.  Dobbin, 
Isaac  Toucey, 
Jacob  Thompson, 
Gideon  Welles, 


Ebsidence. 

Massachusetts, 

Maryland, 

Maryland, 

Massachusetts, 

South  Carolina, 

Pennsylvania, 

Massachusetts, 

New  York, 

New  Jersey, 

North  Carolina, 

New  Hampshire, 

New  Jersey, 

New  York, 

North  Carolina, 

Virginia, 

Massachusetts, 

Virginia, 

Virginia, 

Massachusetts, 

Virginia, 

Virginia, 

North  Carolina, 

Maryland, 

North  Carolina, 

Connecticut, 

Mississippi, 

Connecticut, 


When  appointed. 


May 

May 

Jan. 

March 

March 

Jan. 

Dec. 

Nov. 

Dec. 

March 

May 

June 

June 

March 

Sept. 

July 

Feb. 

March 

March 

Sept. 

March 

July 

July 

March 

March 

March, 

March 


20, 

2, 
7, 


8,  1798. 

21,  1798. 
1802. 
1805. 
1809. 

12,  1813. 
17,  1814. 
30,  1818. 

9,  1823. 
9,  1829. 

23,  1831. 
30,  1834. 
20,  1838. 

5,  1841. 

13,  1841. 

24,  1843. 
15,  1844. 

14,  1844. 
10,  1845. 

9,  1846. 

7,  1849. 

30,  1850. 

22,  1852. 
7,  1853. 

6,  1857. 
1857. 

5,  1861. 


ART.  VI.  — POST-OFFICE  DEPARTMENT. 

§  1.  The  Post-office  Department  was  established  by  act  of  Con- 
gress,  Sept.    22,    1789.     It    is   under  the   general   direction   of 


1  Declined. 


Part  II.]  POST-OFFICE  DEPARTMENT.  307 

the  Postmaater-General.  For  convenience,  the  business  is  distrib- 
uted through  several  bureaus.  The  appointment  office  is  in  the 
care  of  the  first  Assistant  Postmaster-General.  To  his  bureau  are 
referred  all  questions  relating  to  the  names,  establishment,  and  dis- 
continuance of  post-offices,  and  the  appointment  and  removal  of 
postmasters.  In  offices  where  the  salary  of  the  postmaster  is  a 
thousand  dollars  a  year  or  over,  the  appointments  are  made  by  the 
President,  by  and  with  the  advice  and  consent  of  the  Senate.  In- 
structions to  postmasters,  and  the  distribution  of  blanks  and  sta- 
tionery for  the  use  of  the  depai-tment,  are  from  this  bureau.  This 
branch  has  charge  of  the  steamship  lines  on  the  ocean,  and  also  of 
all  international  postal  afiairs. 

§  2.  The  second  Assistant  Postmaster-General  has  charge  of  the 
contract-office.  He  lets  the  contracts  for  carrying  the  mail ;  directs 
in  regard  to  the  mode  of  conveyance,  and  the  time  of  arrival  and 
departure  of  the  mails  on  each  route  ;  fixes  on  the  offices  of  distri- 
bution ;  and  advertises  for  bids  for  carrying  the  mails  on  all  routes 
open  to  competition. 

§  3.  The  third  Assistant  Postmaster-General  has  the  supervision 
of  the  financial  interests  and  business  of  the  department,  except 
what  comes  more  properly  under  the  care  of  the  auditor.  The 
postage-stamps  and  stamped  envelopes  for  prepayment  of  postage 
are  issued  from  this  bureau.  All  quarterly  returns  from  the  post- 
offices  throughout  the  United  States  are  made  to  the  third  Assist- 
ant Postmaster-General.  He  also  has  charge  of  the  dead-letter 
office. 

§  4.  The  bureau  of  the  chief  clerk  attends  to  the  reports  of  the 
arrivals  and  departures  of  the  mails,  noting  all  failures  and  delin- 
quencies on  the  part  of  contractors,  and  prepares  all  such  cases 
for  the  action  of  the  Postmaster-General.  This  bureau  provides  the 
mail  bags  and  the  mail  locks  and  keys. 

The  three  Assistant  Postmasters-General  are  appointed  by  the 
Postmaster-General.  The  following  is  a  list  of  the  Postmasters- 
General  from  the  establishment  of  the  department  to  1868,  with 
dates  of  appointment :  — 


ANALYSIS   OF  CIVIL  GOVERNMENT.    [Part  II. 


Name. 

Residence. 

"When  appointed. 

Samuel  Osgood, 

Massachusetts, 

Sept.    26, 

1789. 

Timothy  Pickering, 

Massachusetts, 

Nov.      7, 

1794. 

Jacob  Habersham, 

Georgia, 

Feb.     25, 

1795. 

Gideon  Granger, 

Connecticut, 

Jan.     26, 

1802. 

Return  J.  Meigs, 

Ohio, 

March  17, 

1814. 

John  McLean, 

Ohio, 

Dec.       9, 

1823. 

William  T.  Barry, 

Kentucky, 

March    9, 

1829. 

Amos  Kendall, 

Kentucky, 

May       1, 

1835. 

John  M.  Niles, 

Connecticut, 

May     25, 

1840. 

Francis  Granger, 

New  York, 

March    6, 

1841. 

Charles  A.  Wickliffe, 

Kentucky, 

Sept.    13, 

1841. 

Cave  Johnson, 

Tennessee, 

March     5, 

1845. 

Jacob  Collamer, 

Vermont, 

March    7, 

1849. 

Nathan  K.  Hall, 

New  York, 

July    20, 

1850. 

Samuel  D.  Hubbard, 

Connecticut, 

Aug.    31, 

1852. 

James  Campbell, 

Pennsylvania, 

March    5, 

1853. 

Aaron  V.  Brown, 

Tennessee, 

March     6, 

1857. 

Joseph  Holt, 

Kentucky, 

March  14, 

1859. 

Montgomery  Blair, 

Maryland, 

March    5, 

1861. 

William  Dennison, 

Ohio, 

Sept.    24, 

1864. 

Alexander  W.  Randall, 

Wisconsin, 

July    25, 

1866. 

ART.  VII.  — INTERIOR    DEPARTMENT. 

§  1.  This  department  was  created  by  act  of  Congress,  March  3, 
1849,  and  has  charge  of  much  of  the  government-business  that 
previously  devolved  on  several  of  the  other  departments.  The 
Secretary  of  the  Interior  is  at  the  head  of  this  department,  and 
he  has  one  assistant  secretary.  The  business  of  it  is  distributed 
through  the  bureaus  of  the  public  lands,  pensions,  Indian  affairs, 
patents,  and  agriculture. 

§  2.  The  principal  officer  in  charge  of  the  Bureau  of  Public 
Lands  is  called  the  Commissioner  of  the  General  Land-Office.  He 
has  charge  of  the  survey  and  sale  of  the  public  lands,  their  legal 


f^V      i*tHi'     -t-' 


'*»!     twVn' 


Part  II.]  INTEKIOR  department.  809 

transfer  according  to  the  laws  of  Congress,  whether  under  the  home- 
stead act,  military  bounty  act,  grants  for  school-purposes,  or  internal 
improvements. 

§  3.  The  chief  officer  of  the  Pension  Bureau  is  called  the  Com- 
missioner of  Pensions.  He  attends  to  the  adjudication  of  pension- 
claims  a<rainst  the  United  States,  whether  due  to  the  soldiers  of  the 
Revolution  or  of  the  late  wars,  and  whether  due  in  land  or  money. 
The  principal  officer  of  the  Indian  Bureau  is  called  the  Commission- 
er of  Indian  Aflfairs,  who  attends  to  all  government-matters  connect- 
ed with  the  Indian  tribes. 

§  4.  The  Bureau  of  the  Patent  Office  is  under  the  direction  of 
the  Commissioner  of  Patents,  who  attends  to  all  business  on  the  part 
of  the  government  in  reference  to  the  issue  of  letters-patent  to 
inventors.  There  is  a  commissioner  of  agriculture,  who  has  super- 
Tision  of  all  the  national  interests  in  agriculture. 

§  5.  By  the  act  of  1849,  organizing  the  Department  of  the 
Interior,  the  supervision  of  the  accounts  of  the  United-States  mar- 
shals and  attorneys,  and  the  clerks  of  the  United-States  courts, 
were  transferred  from  the  treasury  to  this  department.  The  Secre- 
tary of  the  Interior  has  supervision  of  the  marshals  and  others  in 
taking  the  census  of  the  United  States ;  also  of  the  lead  and  other 
mines  of  the  United  States,  and  of  the  accounts  of  the  agents 
therefor. 

§  6.  He  likewise  exercises  supervisory  power  over  the  commis- 
sioners of  the  public  buildings,  including  the  Capitol  and  Department 
buildings;  and  over  the  board  of  inspectors  and  warden  of  the 
penitentiary  of  the  District  of  Columbia. 

§  7.  The  Secretary  of  the  Interior  appoints  the  chief  clerk  and 
all  other  clerks  of  his  department  ;  and  the  commissions  of  all 
officers  under  the  control  and  direction  of  the  Secretary  of  the  Inte- 
rior are  made  out  and  recorded  in  the  Department  of  the  Interior, 
and  the  seal  of  the  department  is  affixed  thereto. 

§  8.  The  Secretary  of  the  Interior  is  charged  with  receiving, 
arranging,  safe-keeping,  and  with  the  distribution  of,  all  printed 
journals  of  the  two  houses  of  Congress,  and  all  other  books  of  what- 
ever nature    printed   and  purchased   for  the  use  of  government, 


310 


ANALYSIS  OF  CIVIL  GOVERNMENT.     [Part  II. 


except  such  as  are  printed  or  purchased  for  the  use  of  Congress  or 
for  the  particular  use  of  any  of  the  other  departments.  He  is 
required  to  set  apart  a  suitable  room  in  the  patent-office  for  their 
safe  keeping. 

The  following  is  a  list  of  the  Secretaries  of  this  department  from 
its  organization  to  the  present  time,  1868,  with  the  dates  of 
appointment ;  — 


Name. 

Residence. 

When   appointed. 

Thomas  Ewing, 

Ohio, 

March  7,  1849. 

Alexander  H.  H. 

Stuart, 

Virginia, 

Sept.  12,  1850. 

Robert  McClelland, 

Michigan, 

Mai'ch  7,  1853. 

Jacob  Thompson, 

Mississippi, 

March  6,  1857. 

Caleb  B.  Smith, 

Indiana, 

March  5,  1861. 

John  P.  Upsher, 

Indiana, 

Jan.     8,  1863. 

James  Harlan, 

Iowa, 

May  15,  1865. 

Orville  H.  Browning, 

Illinois, 

July  27,  1866. 

ART.  VIII.— ATTORNEY-GENERAL'S    OFFICE. 

§  1.  By  act  of  Congress,  Sept.  24,  1789,  there  is  to  he  ap- 
pointed an  attorney-general  of  the  United  States,  who  shall  be  sworn 
to  the  faithful  execution  of  his  office.  He  may  appoint  an  assistant 
at  a  salary  of  $3,500  a  year. 

§  2.  The  duties  of  his  office  may  be  classified  under  the  follow- 
ing heads  :  — 
1st.  He    shall    prosecute    and  conduct  all  suits  in  the  Supreme 

Court  in  which  the  United  States  shall  be  concerned. 
2d.   He  shall  give  advice  and  opinions  on  questions  of  law  when 

required  by  the  President  of  the  United  States. 
3d.  He  shall  give  legal  advice  and  opinions,  when  requested  by 
the  heads  of  any  of  the  departments,  touching  any  matter 
that  concerns  their  departments. 
4th.  He  shall  advise  with  and  direct  the  solicitor  of  the  treasury 
as  to  the  manner  of  conducting  suits,  proceedings,  and  prose- 
cutions. 


Part  II.]         ATTOKNEY-GENEEAL'S  OFFICE. 


311 


5tb.  He   is   charged  with    the  general  superintendence  and  direc- 
tion of  all  United-States  district  attorneys  and  marshals  ;  and 
they  are  required  to  report  to  him  an  account  of  their  official 
proceedings,  and  the  state  and  condition  of  their  respective 
offices,  at  such  times  and  in  such  manner  as  he  may  direct. 
6th.  All  appUcations  to  the  President  for  pardons  in  cases  of  con- 
viction under  the  laws  of  the  United  States  are  referred  to 
the  Attorney-General  for  examination  and  his  opinion. 
7th.  He  oversees  and  conducts  the   transfer  of  all  lands  purcha.scd 
by  the  United  States  as  sites  for  the  erection  of  public  works 
for  government  use.    He  sees  to  the  examination  of  the  titles 
in  such  cases. 
§  3.  The  Attomey-Greneral   is  authorized  to  employ  a  chief  clerk 
at  a  salary  of  $2,200  a  year;    two   clerks,  one  a   "pardon  clerk," 
and  the  other  an  "  opinion  clerk,"  at  salaries  of  $1,800  a  year  each  ; 
and  several  other  clerks  with  salaries  varying  from  $1,200  to  $1,600 
a  year  each. 

§  4.  The  following  is  a  list  of  the  Attorneys-General  from  the  in- 
stitution of  this  office  in  1789  to  1868,  with  the  date  of  appoint- 
ments :  — 


Name. 

Edmund  Randolph, 
William  Bradford, 
Charles  Lee, 
TiiEOPiiiLus  Parsons,^ 
Levi  Lincoln, 
Robert  Smith, 
John  Breckenridge, 
C^SAR  A.  Rodney, 
William  Pinkney, 
Richard  Rush, 
William  Wirt, 
John  M.  Berrien, 
Roger  B.  Taney, 


Residence.  - 

When 

APPOINTED. 

Virginia, 

Sept. 

26,  1789. 

Pennsylvania, 

Jan. 

28,  1794. 

Virginia, 

Dec. 

10,  1795. 

Massachusetts, 

Feb. 

20,  1801. 

Massachusetts, 

March 

5,  1801. 

Maryland, 

March 

2,  1805. 

Kentucky, 

Dec. 

25,  1805. 

Pennsylvania, 

Jan. 

20,  1807. 

Maryland, 

Dec. 

11,  1811. 

Pennsylvania, 

Feb. 

10,  1814. 

Virginia, 

Dec. 

15,  1817. 

Georgia, 

^larch 

19,  1829. 

Maryland, 

Dec. 

27,  1831. 

1  Declined. 

312 


ANALYSIS   OF  CIVIL.  GOVERNMENT.     [Part  II. 


Benjamin  F.  Butler, 

New  York, 

June 

24,  1834. 

Felix  Grundy, 

Tennessee, 

Sept. 

1,  1838. 

Henry  D.  Gilpin, 

Pennsylvania, 

Jan. 

10,  1840. 

John  J.  Crittenden, 

Kentucky, 

March 

5,  1841, 

Hugh  S.  Legare, 

South  Carolina, 

Sept. 

13,  1841. 

John  Nelson, 

Maiyland, 

Jan. 

2,  1844. 

John  Y.   Mason, 

Virginia, 

March 

5,  1845. 

Nathan  Clifford, 

Maine, 

Dec. 

23,  1846. 

Isaac  Toucey, 

Connecticut, 

June 

21,  1848. 

Reverdy  Johnson, 

Maryland, 

March 

7,  1849. 

John  J.  Crittenden, 

Kentucky, 

July 

20.  1850. 

Caleb  Cushing, 

Massachusetts, 

March 

7,  1853. 

Jeremiah  S.  Black, 

Pennsylvania, 

March, 

1857. 

Edwin  M.  Stanton, 

Pennsylvania, 

December,   1860. 

Edward  Bates, 

Missouri, 

March 

5,  1861. 

James  Speed, 

Kentucky, 

Dec. 

2,  1864. 

Henry  Stanbery, 

Ohio, 

July 

23,  1866. 

William  M.  Evarts, 

New  York, 

July 

15,  1868. 

§  5.  There  is  one  principal  messenger  employed  in  each  of  the 
offices  of  the  secretaries  of  the  departments,  at  a  salary  of  $900  a 
year ;  and  there  is  one  principal  messenger  in  each  of  the  bureaus 
of  the  several  executive  departments,  at  a  salary  of  $840  a  year. 
There  are  also  other  messengers  and  assistant  messengers  in  each  of 
the  departments,  at  a  salary  of  $700  a  year. 

§  6.  The  heads  of  the  departments,  with  the  Attorney-General, 
are  the  President's  Constitutional  advisers,  and  constitute  his  cabi- 
net;  each  having  a  salary  of  $8,000  a  year.  Each  of  the  execu- 
tive departments  has  an  official  seal,  which  is  annexed  to  all  public 
documents  issuing  from  their  respective  offices. 


ART.  IX.  —  SPEAKERS  OF   THE  HOUSE  OF  REPRESENTATIVES. 

The  following  is  a  list  of  the  Speakers  of  the  House  of  Represen- 
tatives, from  the  adoption  of  the  Constitution  to  1868,  with  dates 
of  appointment :  — 


PartIL]       speakers  of  house  of  rep. 


;i3 


Name. 

Residence. 

When  appointed. 

Fred.  A.  Muhlenberg, 

Pennsylvania, 

April  1,  1789. 

Jonathan  Trumbull, 

Connecticut, 

Oct.  24,  1791. 

Fred.  A.  Muhlenberg, 

Pennsylvania, 

Dec.   2,  1793. 

Jonathan  Dayton, 

New  Jersey, 

Dec.    7.  1795. 

Jonathan  Dayton, 

New  Jersey, 

May  15,  1797. 

George  Dent,^ 

Maryland, 

Apr.  20,  1798. 

George  Dent, 

Maryland, 

May  28,  1798. 

Theodore  Sedgwick, 

Massachusetts, 

Dec.   2,  1799. 

Nathaniel  Macon, 

North  Carolina, 

Dec.   7,  1801. 

Nathaniel  Macon, 

North  Carolina, 

Oct.  17,  1803. 

Nathaniel  Macon, 

North  Carolina, 

Dee.    2,  1805. 

Joseph  B.  Varnum, 

Massachusetts, 

Oct.  26,  1807. 

Joseph  B.  Varnum, 

Massachusetts, 

May  22,  1809. 

Henry  Clay, 

Kentucky, 

Nov.  4,  1811. 

Henry  Clay, 

Kentucky, 

May  24,  1813. 

Langdon  Cheves, 

South  Carolina, 

Jan.  19,1814. 

Henry  Clay, 

Kentuckj, 

Dec.  4,  1815. 

Henry  Clay, 

Kentucky, 

Dec.   1,  1817. 

Henry  Clay, 

Kentucky, 

Dec.   6,  1819. 

John  W.  Taylor, 

New  York, 

Nov.  15, 1820. 

Philip  P.  Barbour, 

Virginia, 

Dec.   3,  1821. 

Henry  Clay, 

Kentucky, 

Dec.  1,  1823. 

John  W.  Taylor, 

New  York, 

Dec.   5,  1825. 

Andrew  Stevenson, 

Virginia, 

Dec.   3,  1827. 

Andrew  Stevenson, 

Virginia, 

Dec.   7,  1829. 

Andrew  Stevenson, 

Virginia , 

Dec.   5,  1831. 

Andrew  Stevenson, 

Virginia, 

Dec.  2,  1833. 

Henry  Hubbard, 

New  Hampshire, 

May  19,  1834. 

John  Bell, 

Tennessee, 

June  2,  1834. 

James  K.  Polk, 

Tennessee, 

Dec.   7,  1835. 

James  K.  Polk, 

Tennessee, 

Sept.  4,  1837. 

Egbert  M.  T.  Hunter, 

Virginia, 

Dec.  16, 1839. 

John  White, 

Kentucky, 

May  31,  1841. 

1  Elected  pro  tempore  during  sickness  of  the  Speaker. 


314 


ANALYSIS  OF   CIVIL  GOVERNMENT.      [Part  XL 


John  W.  Jones, 

Virginia, 

Dec.  4,  1843. 

George  W.  Hopkins, 

Virginia, 

Feb.  28, 1845. 

John  W.  Davis, 

Indiana, 

Dec.   1,  1845. 

Robert  C.  Winthrop, 

Massachusetts, 

Dec.   6,1847. 

Armistead  Burt,i 

South  Carolina, 

June  19, 1848. 

Armistead  Burt,^ 

South  Carolina, 

June  20, 1848. 

Howell  Cobb, 

Georgia, 

Dec.  22,  1849. 

Linn  Boyd, 

Kentucky, 

Dec.   1,  1851. 

Linn  Boyd, 

Kentucky, 

Dec.  5,  1853. 

Nathaniel  P.  Banks, 

Massachusetts, 

Feb.  2,  1856. 

James  L.  Orr, 

South  Carolina, 

1857. 

William  Pennington, 

New  Jersey, 

1859. 

Galusha  a.  Grow, 

1861. 

Schuyler  Colfax, 

Indiana, 

1863. 

Schuyler  Colfax, 

Indiana, 

1865. 

Schuyler  Colfax, 

Indiana, 

1867. 

ART.  X.- PRESIDENTS 

PRO  TEMPORE  OF 

THE  SENATE. 

Name. 

Residence. 

When  appointed. 

John  Langdon, 

New  Hampshire, 

April,          1789. 

Richard  Henry  Lee, 

Virginia, 

April,          1792. 

John  Langdon, 

New  Hampshire, 

May,            1792. 

John  Langdon, 

New  Hampshire, 

March,         1793. 

Ralph  Izard, 

South  Carolina, 

May,            1794. 

Henry  Tazewell, 

Virginia, 

February,    1795. 

Samuel  Livermorb, 

New  Hampshire, 

May,           1796. 

William  Bingham, 

Pennsylvania, 

February,    1797. 

William  Bradford, 

Rhode  Island, 

July,            1797. 

Jacob  Read, 

South  Carolina, 

November,  1797. 

Theodore  Sedgwick, 

Massachusetts, 

June,           1798. 

John  Lawrence, 

New  York, 

December,   1798. 

James  Ross, 

Pennsylvania, 

March,         1799. 

Samuel  Livermorb, 

New  Hampshire, 

December,   1799. 

1  First,  appointed,  on  account  of  sicknesa  of  Speaker,  for  one  day  ;  then 
for  the  remainder  of  the  session 


Part  II.]  PRESIDENTS  OJP:  THE   SENATE. 


315 


Uriah  Tracy, 

Connecticut, 

May, 

1800. 

John  E.  Howard, 

Maryland, 

November, 

1800. 

James  Hillhousb, 

Connecticut, 

February, 

1801. 

Abraham  Baldwin, 

Georgia, 

December, 

1801. 

Stephen  R.  Bradley, 

Vermont, 

December, 

1802. 

John  Brown, 

Kentucky, 

October, 

1803. 

Jesse  Franklin, 

North  Carolina, 

March, 

1804. 

Joseph  Anderson, 

Tennessee, 

January, 

1805. 

Samuel  Smith, 

Maryland, 

December, 

1805. 

Stephen  R.  Bradley, 

Vennont, 

December, 

1808. 

John  Milledge, 

Georgia, 

January, 

1809. 

Andrew  Gregg, 

Pennsylvania, 

January, 

1809. 

John  Gaillard, 

South  Carolina, 

February, 

1810. 

John  Pope, 

Kentucky, 

February, 

1811. 

William  H.  Crawford, 

Georgia, 

March, 

1812. 

Joseph  B.  Varnum, 

Massachusetts, 

December, 

1813. 

John  Gaillard, 

South  Carolina, 

April, 

1814. 

James  Barbour, 

Virginia, 

February, 

1819. 

John  Gaillard, 

South  Carolina, 

January, 

1820. 

Nathaniel  Macon, 

North  Carolina, 

May, 

1826. 

Samuel  Smith, 

Maryland, 

May, 

1828. 

Littleton  W.  Tazewell, 

Virginia, 

July, 

1832. 

Hugh  L.  White, 

Tennessee, 

December, 

1832. 

George  Poindexter, 

Massachusetts, 

June, 

1834. 

John  Tyler, 

Virginia, 

March, 

1835. 

William  R.  King, 

Alabama, 

July, 

1836. 

Samuel  L.  Southard, 

New  Jersey, 

March, 

1841. 

Willie  P.  Mangum, 

North  Carolina, 

May, 

1842. 

David  R.  Atchison, 

Missouri, 

August, 

1846. 

William  R.  King, 

Alabama, 

July, 

1850. 

David  R.  Atchison, 

Missouri, 

December, 

1852. 

Benjamin  Fitzpatrick, 

Alabama, 

Solomon  Foot, 

Vermont, 

Lafayette  S.  Foster, 

Connecticut. 

Benjamin  F.  Wadb, 

Ohio, 

GLOSSARY. 


Note.  — The  author  is  indebted  to  John  M.  Dunning,  Esq.,  attorney  and 
counselor  at  law,  Rochester,  N.Y.,  for  the  following  carefully-compiled  glossary 
of  legal  terms  and  phrases. 

A. 

Accomplice.    An  associate  or  confederate  in  crime. 
Ackiio  wledg^ment. 

1.  A  declaration  or  avowal  of  one's  own  signature  or  act  to  a  written 

instrument,  as  a  deed  or  mortgage,  before  a  proper  officer,  to  give 
it  legal  validity. 

2.  The  certificate  of  the  officer  on  the  instrument,  that  such  a  declara- 

tion has  been  made. 
Act. 

1.  The  formal  declaration  or  expression  of  the  will  of  the  people,  as 

made  by  their  legal  representatives,  acting  in  a  legislative  ca- 
pacity. 

2.  A  law  passed  by  legislative  authority.     A  statute. 
Administrator.     A  person  lawfully  appointed,  with  his  assent,  by  an 

officer  having  jurisdiction,  to  manage  and  settle  the  estate  of  an  intes- 
tate, or  person  who  dies  leaving  no  last  will  and  testament,  or  of  a  per- 
son who  dies  leaving  a  last  will  and  testament,  but  with  no  competent 
executor  to  carry  the  same  into  execution.  One  to  whom  letters  of 
administration  are  granted. 

Aflministratrix.    A  female  administrator. 

Admiralty. 

1.  The  power  or  officers  appointed  for  the  management  of  naval  affairs. 

2.  The   name  of  a  juinsdiction  which  takes  cognizance  of  suits  or 

actions  which  arise  in  consequence  of  acts  done  upon  or  relating 
to  the  sea. 
In  the  United  States,  all  cases  of  admiralty  and  maritime  jurisdic- 
tion are  vested  in  the  district  courts  of  the  United  States. 
Affidavit.    A  statement  ia  writing,  prefaced  by  the  name  of  the  State, 
and  the  county,  or  city,  or  town,  or  other  municipal  division,   over 
which  the  officer's  jurisdiction  before  whom  it  is  made  extends,  and 

317 


318  GLOSSARY. 

signed  by  the  person  making  the  statement,  and  made  on  oath  or 
affirmation  before  a  person  authorized  by  law  to  administer  oaths  and 
take  affirmations. 

Aflirination.  A  solemn  declaration  made  by  a  person  who  conscien- 
tiously declines  to  take  an  oath,  but  having  the  same  legal  and  binding 
obligation  as  an  oath,  with  like  penalties  for  perjury  attached,  and  to 
be  administered  with  like  formalities. 

Agency.  The  office  or  business  of  a  person  acting  for  or  intrusted  with 
the  affiiirs  of  another.  The  person  so  acting  is  called  the  agent :  the 
one  acted  for  is  called  the  principal. 

Alia^.     Otherwise  called. 

Alibi.  Elsewhere.  A  person  accused  of  a  crime,  pleading  and  proving 
that  he  was  somewhere  else  than  where  the  crime  was  committed, 
at  the  time  of  its  commission,  pleads  and  proves  an  alihi. 

Aflieil.  One  boi-n  in  another  country  than  the  one  where  he  resides ;  not 
possessing,  therefore,  the  rights  of  citizenship  where  he  resides. 

Alimony.  An  allowance  made  by  a  court  to  a  wife  out  of  her  hus- 
band's estate.  This  may  be  done  temporarily,  as  while  a  suit  for 
divorce  is  pending ;  or  it  may  be  done  for  life,  as  where  a  divorce  is 
granted. 

Alleg^lance.  The  duty  of  fidelity  which  a  person  owes  to  his  govern- 
ment for  the  protection  which  it  affiards  him.     Loyalty,  fealty. 

Ambas^ailar.  A  person  appointed  by  a  sovereign  state,  government, 
or  prince,  duly  authorized  to  represent  his  government  at  the  scat  of, 
and  manage  its  interests  with,  the  government  to  which  he  is  sent. 

Amnesty.  An  act  of  oblivion  of  past  offijnscs,  granted  by  the  govern- 
ment, expressly  or  impliedly,  either  before  or  after  conviction,  to  those 
who  have  committed  ofTenses  in  time  of  war,  or  to  those  who  have  been 
guilty  of  any  neglect  or  crime  ;  destroying  the  criminal  act. 

ArbifA*ator.  Umpire,  referee.  A  person  chosen,  by  parties  who  have 
a  controversy,  to  determine  and  settle  their  differences. 

Arrest.     The  taking  or  apprehending  of  a  person  by  the  authority  of  law. 

Arson.  The  willful  and  malicious  buraing  of  a  dwelling-house  or  out- 
house of  another  person. 

Assassin.  One  who  kills,  or  attempts  to  kill,  a  person  by  surprise  or 
secret  assault. 

Assatall.  An  unlawful  attempt  or  offer  to  beat  another,  accompanied  by 
a  degree  of  violence,  but  without  touching  the  person ;  as  with  the 
fist,  or  a  deadly  or  dangerous  weapon. 

AttaKlament.  A  seizure  or  taking  of  the  person  or  property  by  virtue 
of  a  legal  process  issued  by  a  court  of  competent  jurisdiction,  or  by  a 
judge  thereof,  and  directed  to  and  executed  by  the  sheriff  or  other 
proper  officer.    A  writ. 


GLOSSARY.  319 

Attainder.  The  stain,  forfeiture,  and  corruption  of  blood,  which  arise 
on  a  person  being  condemned  for  certain  crimes. 

B. 

Bail*  The  security  given  for  the  release  of  a  prisoner  from  the  custody 
of  an  officer.  The  persons  who  become  responsible  for  the  appearance 
of  the  prisoner  when  demanded  by  the  officer  or  by  the  court. 

13ailec«  The  person  to  whom  goods  are  committed  in  trust  for  a  speci- 
fied object.  He  has  a  temporary  possession,  and  a  qualified  interest  in 
them,  until  the  object  is  accomplished. 

Baililieat.  A  delivery  of  goods  in  trust  for  some  special  object  or  pur- 
pose, on  a  contract,  expressed  or  implied,  that  the  trust  shall  be  faith- 
fully executed  and  the  goods  re-delivered  on  fulfilling  the  conditions 
attached. 

Bailor.  One  who  delivers  goods  to  another  in  trhst  for  a  particular 
purpose. 

Ballot.  A  piece  of  paper  or  other  thing  used  in  voting.  The  act  of 
voting  with  balls  or  tickets. 

BanKrupt.  A  person  who  is  unable  to  pay  his  debts,  and  of  whom  it 
has  been  so  declared  by  a  court.  One  who  fails  in  business,  and 
becomes  insolvent. 

Bequest.  A  gift  of  personal  property  by  a  last  will  and  testament. 
A  legacy. 

Boiltl.  A  writing  signed  and  sealed,  by  which  a  person  binds  himself, 
his  heirs  and  assigns,  to  pay  a  certain  sum  of  money  on  or  before  a 
future  day  appointed,  on  the  failure  of  certain  conditions  therein 
stated. 

Burglary.  The  breaking  and  entering  into  a  dwelling-house  or  other 
building  of  another  person,  with  intent  to  commit  a  felony,  whether 
the  felonious  purpose  be  accomplished  or  not. 

0. 

Cabinet  The  constitutional  advisers  of  the  chief  executive  officer  of  a 
State  or  nation,  taken  collectively.  For  instance,  in  the  United  States, 
the  Secretary  of  State,  and  several  other  officers,  are  called  cabinet 
officers. 

Census.  An  official  registration  of  the  inhabitants  of  a  country,  the 
value  of  their  estates,  and  other  general  statistics  of  public  interest. 

Clieclc.  A  written  order,  usually  drawn  on  a  banker,  for  the  payment 
of  a  sum  of  money  therein  specified. 

Client.  The  employer  of  an  attorney  or  counselor  at  law  to  transact 
professional  business,  usually  in  the  course  of  judicial  proceedings. 


320  GLOSSARY. 

Codieil.  A  supplement,  or  addition,  to  a  will,  forming  a  part  thereof, 
and  executed  with  the  same  formalities. 

Commerce.  The  exchange  of  merchandise  or  commodities  between 
different  places,  countries,  or  communities. 

Concurrent.  Joint  and  equal.  Existing  together,  and  operating  on 
the  same  objects.     With  equal  authority. 

Confiscation.  The  act  of  the  government  in  appropriating  the  prop- 
erty of  an  individual,  as  a  penalty,  to  the  public  use. 

Consang'Uinity.  Relation  by  blood,  llelationship  of  persons  de- 
scended from  a  common  ancestry,  distinct  from  relationship  by  mar- 
riage. 

Consignee.  A  person  to  whom  goods  or  other  things  are  delivered,  in 
trust,  for  sale  or  superintendence.     A  factor. 

Consig^nment.  The  act  of  consigning  goods  or  other  things.  The 
goods  or  property  sent  to  a  consignee. 

Consijl^nor.    A  person  who  makes  a  consignment. 

Conspiracy.  A  combination  of  persons  for  a  wicked  and  unlawful 
purpose. 

Constal>]e.  An  officer  of  the  peace  having  power,  and  bound,  to  execute 
the  warrants  and  other  processes  of  judicial  officers. 

Constituent.  A  person  who  appoints  another  to  act  for  or  represent 
him.     A  Congressman's  constituency  are  the  people  of  his  district. 

Constitution.  The  fundamental  law  of  a  country,  whether  expressed 
in  a  written  document,  or  implied  in  the  institutions  and  usages  of  th^ 
government. 

Contraband.     Merchandise  or  traffic  prohibited  in  time  of  war. 

Contract.  An  agreement  between  two  or  m\)re  parties  competent  to 
contract,  based  on  a  sufficient  consideration,  promising  to  do  or  not  to 
do  certain  things  possible  to  be  done,  which  things  are  not  enjoined  or 
prohibited  by  law. 

Conversion.  An  unlawful  or  wrongful  appropriation,  by  one  person, 
of  the  personal  property  of  another. 

Conveyance.  The  legal  transfer  of  the  property  of  one  person  to. 
another.    An  instrument  in  writing  by  which  this  is  done. 

Convict.  A  person  found  guilty  of  a  crime  by  a  court  of  competent 
jurisdiction. 

Conviction.  The  act  of  convicting  by  the  verdict  of  a  jury  and  judg- 
ment of  a  court. 

Copartner.  A  person  who  is  jointly  concerned  with  others  ifa  any  busi- 
ness-transactions.    A  member  of  a  partnership. 

Copartnei'Sllip.  A  joint  interest  between  two  or  more  persons  in 
pecuniary  or  business  matters. 

Coroner.    An  officer  whose  duty  it  is  to  summon  a  jury  to  inquire  into 


GLOSSARY.  321 

the  cause  and  manner  of  sudden  or  suspicious  deaths,  produced  by  vio- 
lence or  otherwise.     In  certain  cases,  he  acts  as  sheriff. 

Corporation.  A  body  politic  or  corporate,  composed  of  many  individ- 
uals, formed  and  authorized  by  law,  and  empowered  to  act  in  many 
respects  as  a  single  person,  capable  of  suing  and  being  sue«l,  holding 
property,  conveying  the  same,  and  transmitting  it  to  their  successors. 

Corporator.     A  member  of  a  corporation. 

Counsel.  One  who  gives  legal  advice  professionally.  Advice  and  aid 
given  in  legal  proceedings. 

Counselor.  A  person  authorized  by  law  to  give  legal  advice  profession- 
ally, and  to  manage  causes  in  court. 

Court.  One  or  more  persons  sitting  for  the  trial  of  causes  in  a  judicial 
capacity.     The  session  of  a  judicial  assembly. 

Covenant.  A  contract  in  writing,  usually  under  seal,  though  not  neces- 
sarily. 

Covenantee.     The  person  to  whom  a  covenant  is  made. 

Covenantor.     The  person  who  makes  the  covenant. 

Crime.  An  offense  against  the  laws  of  the  land,  to  which  a  penalty  is 
attached. 

Criminal.    A  person  who  has  been  judicially  adjudged  guilty  of  a  crime. 

D. 

I>ebt.    A  sum  of  money  due  by  certain  and  express  agreement. 

Debtor.     A  person  who  owes  another  a  debt. 

Decree.  A  decision,  order,  sentence,  or  judgment,  by  a  court  or  magis- 
trate. 

Deed.  An  instrument  in  writing,  in  due  form  of  law,  conveying  title  to 
real  estate. 

Defaulter.  One  who  is  deficient  in  his  accounts.  One  who  fails  to  ap- 
pear in  court  when  properly  called. 

Defendant.     A  person  against  whom  suit  is  brought  in  a  court. 

Defense.  The  method  adopted  by  the  defendant  to  protect  himself 
against  the  plaintifTs  action. 

Demise.  The  conveyance  of  an  estate  in  fee,  or  for  a  limited  period 
specified. 

Demurrer.  An  admission  of  facts  as  stated  by  the  opposite  party,  but 
a  denial  of  the  legal  consequences  which  that  party  claims. 

Deponent.    A  person  who  makes  a  deposition  or  affidavit. 

Deposition.  Testimony  committed  to  writing,  under  the  proper  legal 
forms,  to  be  afterwards  used  on  the  trial  of  a  cause. 

Descent.     Transmission  by  succession  or  inheritance. 

Devise.    A  disposition  of  real  property  by  will. 
21 


322  GLOSS  ABY. 

Devisee.     A  person  to  wliom  a  devise  is  made. 

]>eviS0r.     The  person  wlio  makes  a  devise. 

I>isfraiichisenieiit.     Deprivation  of  the  rights  of  citizenship ;  as  of 

voting,  or  holding  office. 
I>ivorce.     A  legal  dissolution  of  the  marriage-contract. 
]>oniicile.    An  abode  or  mansion.    Permanent  residence. 
I>oiiatioii.    A  gift. 

I>Oiiee.     The  person  to  whom  a  gift  is  made. 
Iloiior.     The  person  who  makes  a  gift. 
JDower.     The  right  of  the  widow  to  the  use  of  a  certain  portion  of  the  real 

estate  of  which  her  husband  dies  seized. 
Duress.    A  state  of  compulsion  induced  by  fear  or  restraint. 

E. 

Edict.  An  order  issued  by  a  sovereign  to  his  subjects. 
Ejectment.  A  process  of  dispossession  or  expulsion. 
Elector.     One  who  has  the  right  to  vote ;  also  one  chosen  to  cast  the 

vote  of  his  constituency  for  the  President  and  Vice-President  of  the 

United  States. 
Embarg^o.    A  detention  of  ships  and  vessels,  by  order  of  government, 

from  sailing  out  of  port ;  generally  on  account  of  impending  war  or 

public  danger. 
Embezzlemeilt.    Fraudulent  appropriation  to  one's  own  use  of  per- 
sonal property  intrusted  to  him  by  another  for  a  particular  purpose. 
EmblemeiitS.     The  produce  or  fruits  of  land  sown  or  planted. 
Endowment.    A  permanent  provision  for  the  support  of  a  person  or  an 

institution. 
Equity.    Definition  of,  290. 

Estate.     The  interest  which  one  has  in  property  of  any  kind. 
Execution.    A  judicial  writ  empowering  an  officer  to  carry  a  judgmeiit 

into  effect.    The  signing  and  sealing  of  a  legal  instrument,  as  a  deed  or 

will. 
Executor.    The  person  to  whom  the  execution  of  a  will  is  intrusted  by 

the  testator. 


E'ealty.    Fidelity  to  one's  government.     Loyalty.     Allegiance. 
Fee.     An  unconditional  estate  of  inheritance  transmissible  to  heirs. 
Eelon.     One  who  has  been  convicted  of  felony. 
Felony.    A  heinous  crime  punishable  by  imprisonment  or  death. 
Fine.    A  sum  of  money  imposed  by  a  court  for  commission  of  crime. 
Fixtures.     Personal  chattels  affixed  to  real  estate,  passing  with  it. 
Foreclosure.     The  process  of  enforcing  collection  of  a  mortgajfe. 


GLOSSARY.  323 

Forgery,  Fraudently  making  or  altering  a  writing,  or  making  a  thing 
in  imitation  of  another,  with  intent  to  deceive  or  defraud. 

Fralricide.     A  murderer  of  a  brother  or  sister. 

Frail  il.  Deliberate  deception  for  the  purpose  of  obtaining  unfair  and  un- 
lawful advantage  in  business-matters. 

Freehold.     An  estate  in  real  property,  for  life  or  in  fee. 

FreellOider.     The  owner  of  a  freehold. 

G. 

Govern mcnt.  The  manner  in  which  sovereignty  is  exercised.  The 
administration  of  the  laws. 

Orand  Jury.  A  body  of  men,  not  less  than  twelve,  nor  more  than 
twenty-three,  summoned  according  to  the  forms  of  law,  attending  upon 
court  for  the  purpose  of  inquiring  into  the  commission  of  crimes  within 
their  jurisdiction.  They  find  indictments  against  criminals,  and  pre- 
sent them  to  the  court. 

Orailt.    A  transfer  of  property  by  deed  or  writing. 

Orantee.     The  person  to  whom  a  grant  is  made. 

Grantor.     The  person  who  makes  a  grant. 

Guardian.  One  who  has  the  lawful  supervision  of  the  person  and 
business-affairs  of  an  infant  or  other  incompetent  person. 

H 

Habeas  Corpus.  Literally,  you  may  have  the  body.  A  writ  having 
for  its  object  to  bring  a  party  before  a  court  or  judge,  especially  with 
a  view  to  inquire  into  the  cause  of  a  person's  imprisonment  or  detention 
by  another.  If  the  person  is  found  to  be  unlawfully  restrained  of  his 
liberty,  he  will  be  discharged ;  if  not,  he  will  be  remanded  to  prison  or 
custody. 

Heir.  One  who  receives,  inherits,  or  is  entitled  to,  the  possession  of  any 
property  after  the  death  of  its  owner.  One  to  whom  property  descends 
by  inheritance. 

Homestead.  One's  dwelling-place,  with  that  part  of  his  real  estate 
immediately  surrounding  it. 

I. 

Sllc^pa.!.     Contrary  to  law.     Unlawful. 

Iinpeacliment.    An  arraignment  of  a  public  officer,  under  a  written, 

formal  accusation  of  corruption  in  office,  or  of  crimes  and  misdemeanors 

for  which  he  ought  to  be  removed  from  office. 


824  GLOSSARY. 

Imports.     Goods  and  chattels  brought  from  foreign  countries  in   the 

course  of  trade. 
Imposts.     Taxes  or  duties  imposed  ;  more  especially  on  imports. 
Ina.lieiia1>Ie.     Not  transferable. 

Inchoate.     That  which  is  not  yet  complete  or  finished. 
Indicfmeait.     A  written  accusation  of  crime  against  a  person,  made  by 

a  grand  jury  in  due  form  of  law. 
Informer.     One  who  informs  the  judicial  authorities  against  a  person 

who  has  violated  some  penal  statute. 
Inberitanee.    A  continuing  right  in  an  estate  to  a  person  and  his  heirs. 

A  right  transmitted  by  operation  of  law. 
Injunction.     A  writ  granted  by  a  competent  court  or  a  judge  thereof, 

commanding  a  person  to  do  or  not  to  do  some  specific  act  mentioned 

in  the  writ. 
Inquest.     A  judicial  inquiry.     An  official  examination. 
Insolvency.     A  condition  of  inability  to  pay  one's  debts. 
Insurg^^lt.     A  person  who  rises  in  revolt  against  the  authority  of  gov- 
ernment or  law. 
Intestate.    A  person  who  dies  without  making  a  will. 

J. 

Judgfe.     A  judicial  magistrate  above  the  grade  of  justice  of  the  peace. 

Juilg^ment.  A  judicial  determination  of  a  court  or  a  judge,  on  ^he 
facts  and  issues  tried  in  a  cause. 

Judicial.     Pertaining  to  courts  of  justice. 

Judiciary.  That  branch  of  government  represented  by  the  courts,  giv- 
ing interpretation  and  application  to  the  laws. 

Jurat.  The  certificate  of  the  officer  at  the  end  of  an  affidavit,  showing 
when  and  before  whom  it  was  made. 

Jurisprudence.     The  science  of  law. 

Jurist.     One  well  versed  in  the  science  of  the  laws  of  the  land. 

Juror.     One  who  serves  on  a  jury. 

Jury.  A  body  of  men  summoned  and  sw»rn  in  court,  to  make  inquest,  or 
to  give  verdict  on  the  facts  of  a  cause  as  they  appear  from  the  evidence. 

jJury-Box.     The  place  where  the  jury  sits  during  the  trial  of  a  cause. 

L. 

I^andlord.     The  owner  of  lands  or  houses  leased  to  tenants. 

liarceny.  The  unlawful  taking  and  carrying  away  and  appropriating 
the  personal  property  of  another. 

JLaw.  A  rule  of  action  prescribed  by  the  supreme  power  of  a  State,  com- 
manding what  is  ri^ht,  and  prohibiting  what  is  wrong. 


GLOSSARY.  325 

liawful.     That  which  is  not  prohibited  by  law. 

L<ea.SC.  The  temporary  letting  of  real  estate  by  the  owner  to  the  use  of 
another. 

Lcg^acy.     A  gift  of  personal  property  by  will.     A  bequest. 

ILegcal.     Lawful.     Permitted  by  law. 

liCgatee.     One  to  whom  a  legacy  is  made. 

Leg^islatOl*.     One  who  assists  in  making  the  laws. 

Lieg^islature.     The  body  of  men  who  enact  or  repeal  the  laws. 

L.essee.     The  person  to  whom  property  is  leased. 

I^eSSOr.     The  person  who  leases  property  to  another. 

JLevy.     The  seizure  of  property  on  execution  or  tax-warrant. 

l^ibeL  A  defamatory  writing.  A  published  defsimation.  A  malicious 
publication  expressed  in  print,  writing,  by  pictures,  effigies,  or  other 
signs,  tending  to  injure  the  memory  of  the  dead  or  the  reputation  of  the 
living,  and  to  expose  them  to  public  hatred,  contempt,  or  ridicule. 

liien.     A  legal  claim  on  property,  for  which  the  property  is  liable- 

Litig^ant*     A  person  engaged  as  a  party  in  a  lawsuit. 

Liitig^ation.    A  legal  contest  between  parties  in  court. 

Lunacy.     Insanity  broken  by  intervals  of  reason. 

Lunatic*    A  person  affected  by  lunacy. 

M. 

majority.     The  full  age  required  by  law  to  manage  one's  own  business- 

aifairs. 
Malefactor.     One  who  has  committed  a  crime.     A  criminal. 
Malfeasance.     The  doing  of  that  which  the  party  has  no  legal  right 

to  do. 
Malicious.     With  wicked  and  unlawful  intentions. 
Manslaughter.     The  unlawful  killing  of  a  person,  without  malice 

expressed  or  implied. 
Marshal.     A  ministerial  officer  in  attendance  at  the  United-States  courts, 

whose  duty  it  is  to  serve  the  processes   of  the  courts,  and  to  do  such 

duties  as  usually  devolve  on  the  sheriffs  of  State  courts. 
Minor.     A  person  of  either  sex  under  twenty-one  years  of  age. 
Misdemeanor.     Any  indictable  crime  less  than  a  felony. 
Misfeasance.     A  trespass,  or  any  other  affirmative  wrong. 
Misnomer.     The  mistaking  of  the  true  name  of  a  person. 
Misprision.     Concealment  of  a  crime. 
MortgU.g[e.     A  conditional  conveyance  of  property,  usually  as  security 

for  the  payment  of  a  debt. 
Mortgclgee.     The  person  to  whom  a  mortgage  is  given. 
Mortg^ag'Or.     One  who  makes  a  mortgngo. 


826  GLOSSABY. 

K 

Nation.    The  whole  people  of  a  country  united  under  one  government. 

Native.  A  person  born  within  the  limits  of  a  country.  A  citizen  or  in- 
habitant by  birth. 

Naturalization.     That  process  by  which  an  alien  becomes  a  citizen. 

Neg^otiable.  Transferable  from  one  to  another,  with  or  without 
indorsement. 

Neutrality.  The  act  of  taking  no  part  between  two  nations  at  war 
with  each  other. 

Nonsuit.  A  judgment  given  against  a  plaintiff  when  he  fails,  with  or 
without  trial,  to  prove  his  action. 

Nuisance.     That  which  incommodes  or  annoys. 

Nuncupative.     Oral  or  verbal ;  that  which  is  not  written. 

o. 

Oatll.  A  solemn  affirmation  or  declaration,  before  a  competent  tribunal  or 
officer,  to  tell  the  truth,  appealing  to  God  for  the  truth  of  what  ia 
asserted. 

Obligation.  A  bond  with  a  condition  annexed,  and  a  penalty  for  non- 
fulfillment. 

Obligee.     The  person  to  whom  another  is  bound. 

Obligor.     The  one  who  gives  a  bond  to  another. 

Offense.    An  open  violation  or  transgression  of  a  law. 

Officer.     One  lawfully  invested  with  a  civil  or  military  office. 

Ordinance.     A  rule  established  by  authority. 

Outlaw.    A  person  excluded  from  the  benefit  of  law. 

P. 

Pardon.  An  act  of  grace  or  favor  from  the  sovereign  authority,  remit- 
ting the  penalty  for  crimes  committed  by  subjects.  An  amnesty  is  a 
general  pardon  to  a  large  number. 

Partner.  An  associate  in  business  transactions  under  a  contract  of  part- 
nership. 

Partnership.  An  association  of  two  or  more  persons  in  business  mat- 
ters under  contract. 

Passport.  Official  authority  to  travel  from  place  to  place  by  land  or 
water,  especially  in  foreign  countries. 

Pauper.  A  person  so  poor  as  to  be  unable  to  maintain  himself,  de- 
pending on  charity  for  support. 

Paiivn.  A  chattel  given  in  pledge  for  the  fulfillment  of  a  promise  to  do 
something,  or  pay  money. 


QLOSSAKY.  327 

Pawnee.    The  person  who  receives  a  pawn. 
Pavriior.     The  person  who  deposits  a  pawn. 
Penally*     Penal  retribution.     Punishment  for  a  crime. 
Pension.     An  allowance  paid  by  j;ovcrnmcnt,  for  past  services,  to  offi- 
cers, soldiers,  and  sometimes  to  authors  and  artists. 
Perjai'y.     Knowingly  swearing  falsely  to  matters  material,  in  the  course 

of  judicial  or  other  proceedings  authorized  by  law,  before  an  officer 

competent  to  administer  an  oath. 
Plaintilf.     The  party  who  commences  a  suit  in  a  court. 
Pleadlng^S.     The  statement  in  a  logical  and  legal  form  of  the  facts 

which  constitute  the  plaintiff's  cause  of  action,  and  the  defendant's 

ground  of  defense. 
Policy.     The  writing  or  instrument  in  which  a  contract  of  insurance  is 

embodied,  whether  on  property  or  life. 
Prima  facie.    Upon  the  first  appearance. 
Prison.    A  place  of  custody  or  confinement  of  a  person  against  his  will, 

A  jail. 
Prisoner.     A  person  restrained  of  liberty  against  his  will. 
Prosecntor.     One  who  institutes  a  suit  in  a  court  of  law  or  equity. 
Pnnisliment.     A  penalty  inflicted  by  a  court  on  a  criminal. 

R. 

Heal.  Pertaining  to  things  fixed  and  permanent,  as  real  estate. 
HeaUy.  The  permanent  nature  of  real  property.  Real  estate. 
Be1>el.    A  person  who  revolts  from  the  government  to  which  he  owes 

allegiance,  by  openly  opposing  it,  or  taking  up  arms  against  it. 
Receiver.     A  person  appointed  by  a  court  to  receive  and  hold  in  trust 

money  or  other  property  which  is  the  subject  of  litigation,  pending  the 

suit. 
Referee.    One  to  whom  matters  in  controversy  are  referred,  by  agree- 
ment of  the  parties  or  otherwise,  for  decision. 
Release.     A  giving  up  in  clue  form  some  right  or  claim. 
Rent.     A  certain  periodical  profit  issuing  out  of  the  use  of  lands  and 

tenements. 
Replevin.     The  name  of  an  action  at  law  for  recovering  the  possession 

of  goods  and  chattels  wrongfully  taken  or  detained. 
Reversion.     The  return  of  an  estate  to  the  grantor  or  his  heirs,  after 

the  grant  is  determined. 

s. 

Seizin.     The  possession  of  an  estate  in  freehold. 

Sergeant-at-arms.     The  officer  of  a  legislative   body  who   serves 
processes,  and  executes  the  orders  of  that  body.     Their  constable. 


328  GLOSSARY. 

Sherifi*.     The  chief  ministerial  officer  of  a  county  to  whom  is  intrusted 

the  execution  of  the  laws. 
Solicitor.     An  attorney ;  one  who  practices  in  a  court  of  equity. 
Solvency.     Ability  to  pay  all  of  one's  debts. 
Specialty.     A  contract,  or  obligation  by  deed,  under  seal. 
Statute.    An  act  passed  and  completed  by  the  law-making  power. 
Subornation  of  Perjury.     Procuring  or  inducing  a  person  to  take 

a  false  oath  constituting  perjury. 
SubpiFua.     A  legal  writ  or  process  used  for  summoning  a  witness  into 

court. 
Suit.    The  attempt  to  secure  a  remedy  by  appeal  to  a  court. 
Summons.     A  writ  issued  by  a  court,  at  the  instance  of  the  plaintiff, 

citing  or  warning  the  defendant  to  appear  at  a  certain  time,'  to  answer 

to  claims  preferred  against  him  by  the  plaintiff. 
Surety.     One  who  becomes  responsible  for  another. 
Surrogate.    An  officer  who  presides  over  the  probate  of  wills,  and  the 

settlement  of  the  estates  of  deceased  persons. 


Tenant.     One  who  has  temporary  occupation  or  possession  of  lands  or 

tenements,  the  title  of  which  is  in  another. 
Tender.     An  offer  to  pay  money,  deliver  specific  articles,  or  to  perform 

service,  according  to  the  conditions  of  a  contract. 
Tenure.     The  manner,  act,  or  right  of  holding  property,  especially  real 

estate,  whether  by  exclusive  title  or  by  lease. 
Testator.     One  who  leaves  a  valid  will  at  death. 
Testatrix.    A  female  testator. 

Testimony.     The  statements  of  witnesses  under  oath  or  affirmation. 
Title.     That  which  gives  the  right  to  exclusive  possession. 
Tonnag^e.    A  tax  or  duty  on  ships  or  vessels  in  proportion  to  their 

capacity  or  their  actual  cubical  contents. 
Tort.     Wrong  or  injury  to  one's  property  or  rights,  for  which  an  action 

will  lie. 
Traitor.     One  who  violates  his  allegiance,  and  betrays  his  country.    A 

person  guilty  of  treason. 
Treason.    An  attempt  to  overthrow  the  government  to  which  one  owes 

allegiance.     In  the  United  States,  the  levying  of  war  against  the  gov- 
ernment, or  adhering  to  its  enemies,  giving  them  aid  and  comfort. 
Treaty.     A  compact,  league,  agreement,  or  contract  between   two   or 

more  nations  or  sovereigns,  executed  in  legal  form. 
Trespass.     An  unlawful  act  committed  with  force  and  violence  by  one 

person  on  the  property  or  right  of  another. 


GLOSSARY.  329 

Trustee.  One  who  holds  or  is  intrasted  with  property  for  the  benefit  of 
others,  or  for  corporate  bodies. 

u. 

Unalienable.    Not  capable  of  sale,  transfer,  or  release. 
Unconstitutional.     Contrary  or  not  agreeable  to  the  Constitution. 
Use.     The  benefit  or  profit  of  lands  and  tenements,  usually  held  by  a 

trustee  for  the  benefit  of  another. 
Usury.    A  premium  paid  or  promised  for  the  use  of  money,  beyond  the 

rate  of  interest  established  by  law.    Illegal  interest. 

V. 

V.    This  letter  is  often  put  for  versus,  or  against,  in  legal  documents. 

Vendee.     The  purchaser,  or  person  to  whom  a  thing  is  sold. 

Venue.  The  place  or  county  in  which  an  act  or  fact  is  alleged  to  have 
been  committed. 

Verdict.  The  unanimous  decision  of  a  jury,  as  reported  to  the  court,  on 
matters  submitted  to  them  in  the  trial  of  a  cause  civil  or  criminal. 

Verification.     The  act  of  proving  to  be  true ;  confirmation. 

Veto.  A  Latin  word,  signifying  I  forbid.  It  is  applied  to  the  refusal  of 
the  executive  to  sign  a  bill  passed  by  the  legislature. 

Vicinage.     Contiguous  or  neii^hboring  places. 

Viva  voce.     Literally,  by  the  living  voice,  or  orally. 

Void.  Of  no  legal  or  binding  force  whatever,  and  incapable  of  confirma- 
tion or  ratification. 

Voidable.    Capable  of  being  avoided  and  adjudged  invalid. 

Vote.  The  means  employed  to  express  one's  choice,  preference,  or  will, 
either  at  elections,  in  legislative  bodies,  or  in  the  course  of  other  pro- 
ceedings ;  sometimes  done  by  balls,  sometimes  by  written  ballot,  or  by 
the  voice. 

Voter.     One  who  votes,  or  has  the  legal  right  to  vote. 

w. 

Waril.  An  infant  placed  by  authority  of  law  under  the  care  of  a  guar- 
dian. 

Warraait.  A  writ  authorizing  the  arrest  of  a  person  to  be  brought  be- 
fore th3  officer  issuing  the  same,  or  some  other  officer  of  concurrent 
jurisdiction.  It  is  directed  to  the  sheriff"  or  other  officer  authorized  to 
make  arrests. 

VFai*rantee.    The  person  to  whom  land  or  other  property  is  warranted. 


330  GLOSSARY. 

'Warrantor.    The  person  who  makes  a  warranty. 

Wawailty.  An  engagement  that  a  certain  fact  regarding  the  subject  of 
a  contract  is  or  shall  be  as  expressly  or  impliedly  promised  by  the 
warrantor. 

\Vill.  The  legal  declaration  of  a  person,  in  view  of  death,  as  to  the  man- 
ner in  which  he  would  have  his  property  disposed  of  after  that  event. 
The  instrument  making  this  declaration. 

Witness.  A  person  who  testifies  in  a  court,  on  oath  or  affirmation,  as  to 
his  knowledge  of  the  facts  in  issue  between  the  parties.  One  who  sub- 
scribes to  a  piece  of  writing  to  authenticate  it. 

Writ.  An  instrument  in  writing,  issued  by  a  court  or  magistrate,  com- 
manding the  performance  or  non-performance  of  some  act  by  the  person 
to  whom  it  is  directed;  as  a  writ  of  entry,  execution,  injunction,  sum- 
mons, &c. 


INDEX. 


Absent  members  of  Congress  may  be  compelled  to  attend,  58,  83, 148, 149. 
Account  of  receipts  and  expenditures  of  public  money,  to  be  published,  62,  90, 

214,  215. 
Acts,  public,  of  the  States,  faith  to  be  given  to,  68,  93,  230. 
Adams,  Jolin,  first  Vice-President  of  the  United  States,  30 ;  President,  296. 
Adams,  Jolm  Q,aiiic7,  elected  President  of  the  United  States  by  the  House  of 

Representatives,  IC  ; ;  I'resident,  297. 
Adjournment  of  (.'oiigrcss,  eflfect  of,  when  bills  are  in  the  hands  of  the  Presi- 
dent, GO,  89,  210;  restrictions  on  each  house  in  reference  to,  58,  83, 152. 
Affirmation,  substitution  of,  for  oath,  154. 
Admiralty  and  maritime,  67,  105,  293,  294. 
Alliances,  States  forbidden  to  enter  into,  63,  96,  240,  241. 
Ambassadors,  appointment  of,  66,  82,  102,  141, 144;  reception  of  foreign,  66, 103, 

279;  delinition  of,  277. 
Amendments  to  the  Constitution,  when  the  first  twelve  were  made,  32;  power  of 

Congress  over,  69,  87,  202. 
American  Revolution,  causes  that  led  to  the,  16. 
American  Colonies  under  the  British  Government,  11. 
Appellate  jurisdiction  of  the  Supreme  Court,  67,  105,  294;  meaning  of,  290. 
Appointments,  power  of  Congress  over,  66, 102,  201,  202;  by  the  President,  68, 

102,  275,  276. 
Apportionment,  of  representatives,  56,  79,  106, 116-119;  of  direct  taxes,  56,  84, 

90, 157. 
Appropriations,  for  armies,  restrictions  as  to,  61,  90,  214,  215  ;  must  be  made  by 

law  before  money  can  be  drawn  from  the  treasury,  62,  90,  214,  215. 
Arkwriglit,  Sir  Richard,  invents  the  spinning-jenny,  205. 
Armiies,  Congress  may  raise  and  support,  61,  85, 184, 185. 
Arms,  on  keeping  and  bearing,  70, 01,  224. 
Army,  standing,  187;  of  several  European  countries,  187, 188. 
Arrest,  members  of  Congress  privileged  from,  under  the  Confederation,  47;  under 

the  Constitution,  59,  99,  2j9,  200. 
Arsenals,  restrictions  concerning,  194. 
Articles  of  Confederation.    Sec  Confederation. 
Arts  and  sciences,  promotion  of  the,  01,  85, 179-181. 
Attainder,  bill  of,  not  to  be  passed  by  the  United  States,  62,  90,  216 ;  definition 

of,  216;  nor  by  the  States,  63,  96,  245. 
Attorneys-General,  310;  list  of,  311. 
Authors,  copyrights  for,  61,  85,  178-180. 
Ayes  and  Noes,  in  Congress,  58,  83, 150, 151. 

S31 


332  INDEX. 


Ball,  excessive,  not  allowed,  72,  98,  255;  definition  of,  255,  257, 

Bankruptcy,  power  of  Congress  to  pass  a  uniform  law  respecting,  60,  85, 171, 172. 

Bankrupt  laws  Toy  the  States,  forbidden,  172;  definition  of,  172. 

Bills,  power  of  the  President  to  approve  or  negative,  59,  60,  88,  89,  209,  210. 

Bills  for  raising  revenue,  to  originate  with  the  House  of  Representatives,  59,  80, 
126, 128. 

Bills  of  Attainder,  not  to  be  passed  by  Congress,  62,  90,  216;  nor  by  the  States,  63, " 
96,  216;  definition  of,  216. 

Bills  of  credit.  States  forbidden  to  emit,  63,  96,  242;  meaning  of,  212;  emission 
under  the  Confederation,  242. 

Bills  of  indictment,  250,  253. 

Borro-wing^  money  under  the  Confederation,  53;  under  the  Constitution,  by  Con- 
gress, 60,  84,  159,  160. 

Breckinridge,  John  C,  Vice-President  of  the  United  States,  298. 

Briljcry,  impeachment  for,  66,  93,  228. 

Buchanan,  James,  President  of  the  United  States,  298. 

Burr,  Aaron,  candidate  for  President  of  the  United  States,  128 ;  is  Vice-PreBident, 
297. 


€. 

Cabinet,  the  President's  constitutional  advisers,  312;  their  salaries,  312. 

Calhoun,' John  C,  twice  Vice-President  of  the  United  States,  297. 

Capitation  taxes  to  be  in  proportion  to  the  census,  62,  90,  157,  213. 

Captures  on  land  and  water.  Congress  may  make  rules  concerning,  61,  85, 184,294. 

Cart-»vrlght,  ELdmuncl,  invents  the  power-loom,  205. 

Ceded  places,  power  of  Congress  over,  61,  62,  86,  193,  194. 

Census,  how  and  when  made,  56,  80, 124-128. 

Charter  governments,  16. 

Chief  Justice  to  preside  on  the  trial  of  the  President  by  the  Senate,  57,  82, 142, 

146;  salary  of,  289. 
Citizenship,  privileges  and  immunities  of,  68,  93,  106,  230;  of  representatives,  56, 

79, 119, 120 ;  of  senators,  57,  80,  130,  131 ;   of  the  President  of  the  United  States, 

64,  100,  262. 
Clay,  Henry,  candidate  for  the  Presidency  of  the  United  States,  129. 
Clinton,  George,  Vice-President  of  the  United  States,  297 ;  is  re-elected,  297. 
Coin,  domestic  and  foreign,  value  of,  how  regulated,  60,  84,  85,  169-171. 
Colonial  governments,  divided  into  three  classes,  14-16. 
Colonies,  unity  of,  18. 

Commerce,  power  of  Congress  to  regulate,  60,  84,  166-168. 
Commercial.    Matters  auxiliary  to  commerce,  power  of  Congress  over,  61,  84,  85, 

168-172. 
Commissions  issued  by  the  President  of  the  United  States,  66,  103,  281. 
Comntissioneri4  appointed  by  Maryland  and  Virginia,  24. 
Committee  of  the  States  under  the  Confederation,  20,  21,  51. 
Common  law  of  England  introduced  into  the  Colonies,  14;  definition  of,  256. 
Common  defense,  one  of  the  objects  of  the  Constitution  to  provide  for,  65,  78, 109, 

165. 


INDEX.  333 

Compensation,  of  mem'bera  of  Congress,  59,  84,154-156;  of  Judges  of  the  Federal 
Courts,  67,  105,  289;  of  cabinet  officers,  312;  of  the  President  of  the  United 
States,  65,  101,  272. 

Confederation,  Articles  of,  18, 19 ;  ratification  of,  19 ;  peculiarities  of,  19, 20 ;  copy 
of,  45. 

Confederation,  decline  and  fall  of,  21;  defects  of,  22. 

Congress,  first  and  second  Continental,  18.  Second,  passed  the  Declaration  of 
Independence,  18;  remained  in  session  until  the  close  of  the  Revolutionary- 
War,  18. 

Congress,  Constitutional,  first  meeting  of,  30 ;  composed  of  a  Senate  and  House  of 
Representatives,  55,  78 ;  power  of,  relating  to  finances,  60,  84, 157-166 ;  commerce, 

60,  84,  85, 166-172;  penalties,  60,  85, 172-175;  post-offices  and  post-roads,  61,  85, 
175-178;  patent  and  copy  rights,  61, 85, 178-181;  war,  61, 85, 86, 181-188;  judiciary, 

61,  67,  86,  188,  189;  naturalization,  60,  8f>,  189-192;  governing  territory,  69,  86, 
192,  193;  the  seat  of  government  of  the  United  States,  61,  86,  193,  194;  other 
ceded  places,  61,  86, 194,  195;  disposing  of  territory,  69,  86,  195;  the  admission 
of  new  States  into  the  Union,  68,  86,  195-197 ;  State  elections,  68,  86,  197,  198 ; 
electors  of  President  and  Vice-President,  64,  87, 199 ;  acts,  records,  and  judicial 
proceedings  of  States,  68,  87,  199,  200;  imposts  and  duties  by  States,  63,  87,  200, 
201 ;  executive  vacancy,  65, 87, 201 ;  appointments  to  office,  66,  87, 201, 202 ;  amend- 
ments to  the  Constitution,  69,  87,  88,  202,  203 ;  slavery  and  the  slave-trade,  62,  74, 
88,  203-205;  general  law-making,  62,  88,  205,  206. 

Constitution  of  the  United  States,  origin  of,  23 ;  ratification  of,  31 ;  amendments 

to,  31 ;  preamble  to,  55,  78,  109-114;  analysis  of,  78. 
Connecticut,  settled,  13;  original  government  of,  16;  ratifies  the  Constitution,  31; 

concession  of  territory  by,  196. 
Consuls,  appointment  of,  66,  102;  definition  of,  277. 
Contracts,  laws  impairing  the  obligation  of,  prohibited,  63,  96,  243,  244;  defiiiition 

of,  243.      See  Glossary. 
Controversies,  judicial  jurisdiction  over,  67, 105,  295,  296. 
Conviction,  in  cases  of  impeachment,  58,  82,  142,  145-147. 
Copyrlgflit,  how  protected,  61,  85 ;  necessary  steps  to  secure,  179-181. 
Counsel  for  accused,  required  by  the  Constitution,  71,  98,  254,  255. 
Counterfeiting  securities  and  current  coin  of  the  United  States,  punishable,  60, 

85,  172,  173. 
Crawford,  ■William  H.,  candidate  for  the  Presidency  of  the  United  States,  129. 
Credit,  States  forbidden  to  emit  bills  of,  63,  96,  241-243. 

Crimes,  impeachable,  66,  92,  93 ;  committed  on  the  high  seas,  51,  85, 173, 174. 
Criminals,  delivering  up  fugitive,  68, 94,  233-235 ;  not  obliged  to  accuse  themselves, 

71,  98,  254;  not  to  be  tried  twice,  71,  98,  250,  251. 
Currency  of  the  country,  169-171. 
Custom-House,  duties  collected  by,  158, 159. 


Dallas,  George  M.,  Vice-President  of  the  United  States,  298. 

Debate,  liberty  of,  in  Congress,  59,  99,  259,  260. 

Declaration  of  Independence,  passed  by  second  Continental  Congress,  18 ;  copy 

of,  40. 
Declaration  of  Rights,  18;  copy  of,  35. 
Declaration  of  war,  definition  of,  182. 


334  INDEX. 

Debts,  taxes  laid  and  collected  to  pay,  60,  84, 164;  amount  of,  at  various  periods, 

160, 165 ;  tender  in  payment  of,  63,  96,  243 ;  contracted  before  the  adoption  of  the 

Constitution,  valid  afterward,  69,  70,  91,  221,  222. 
Defense,  the  common,  provision  for,  55,  78, 112. 
Delaware,  appendage  of  New  York,  11, 12 ;  afterward  came  under  the  jurisdiction 

of  Pennsylvania,  12;  original  government  of,  16;  adopts  the  Constitution,  31. 
Departments  of  government,  necessity  of  three,  33,  34,  78 ;  division  into,  114. 
Departments,  executive,  299-309,  312. 
Direct  taxes,  not  to  be  laid  except  in  proportion  to  the  census,  56,  90, 157 ;  power  of 

Congress  to  lay  and  collect,  84,  157. 
Discovery,  right  of,  11, 12. 
District  of  Columbia,  193. 

Domestic  tranquillity,  provision  for  Insuring,  55,  78,  111,  112. 
Duties,  power  of  Congress  to  lay  and  collect,  60,  84,  157, 158;  definition  of,  158; 

where  collectible,  158. 


electors  of  President  and  Vice-President,  64,  87, 199,  263,  264;  of  representatives, 
56,  79, 123;  of  senators,  57,  81, 133, 134. 

Bstablisliment  of  religion  by  Congress,  forbidden,  70  91,  224,  225. 

E^xcises,  power  of  Congress  to  lay  and  collect,  60,  84, 157 ;  meaning  of,  158. 

Execution  of  the  laws,  the  President  to  see  to,  66, 103,  280,  281. 

Executive  Department,  vested  in  a  President,  63,  99,  260,  261 ;  term  of  ofScc  of,  63, 
99,261,252;  eligibility  to,  64,  100,  262,  263;  election  to,  63,  72,  73,  100,  263-271; 
proceedings  of  electors  to  elect  to,  72,  73, 100,  264-266 ;  proceedings  in  Congress 
to  elect  to,  73, 100,  101,  286,  267;  when  the  House  of  Representatives  elects  to, 
73, 101,  287,  263;  oath  of  office  on  assuming  the,  65, 101,  271;  how  the  incumbent 
of  removable,  63, 101,  271;  eligible  to  re-election,  263. 

Ex  post  facto  law,  forbidden,  62,  63,  90,  96,  216,  217,  245. 

Expenditures  of  money  to  be  published,  62,  90,  214,  215. 

Exports,  duties  on,  forbidden,  62,  90,  213,  214. 

Expulsion  from  Congress,  58,  83, 151, 152. 


Faitli  and  credit  given  to  public  acts  of  States,  68,  93,  230. 

Felony,  Congress  to  define  and  punish,  61, 85, 173, 174;  common-law  definition  of, 

174. 
Fillmore,  Millard,  Vice-President  of  the  United  States,  298;  succeeded  to  the 

Presidency  on  the  death  of  President  Taylor.  139 ;  President,  298. 
Fines,  excessive,  forbidden,  72,  98,  255,  256;  definition  of,  255. 
Florida,  acquisition  of,  196;  admisssion  of  into  the  Union,  197. 
Foreign  commerce,  regulation  of,  60,  84, 166,  167. 
Foreign  ministers  to  be  received  by  the  President,  66, 103,  279,  280. 
Foreign  patronage  forbidden,  62,  63,  92,  227. 
Forts*  reservations  respecting,  194. 
Franklin,  Benjamin,  opinion  of,  on  the  veto,  210. 
Freedom  of  the  press  and  speech  not  to  be  abridged,  70,  91,  222,  223. 


INDEX.  335 


Freedom,  religious,  not  to  be  prohibited,  70,  SI,  222,  224,  225. 
Fu^tives,  under  the  Confederation  to  be  delivered  up,  46;  under  the  C!on8titation, 
68,  94,  233-235. 


General  \TeIfare,  provision  for,  55,  78, 109, 165. 

Georgia,  settled,  13;  original  government  of,  15;  adopts  the  Constitution,  51;  eon- 
cession  of  territory  by,  196. 

Gerry,  Elbridge,  Vice-President  of  the  United  States,  297.  * 

Gold  and  silver,  tender  of,  in  payment  of  debts,  63,  96,  243. 

Governments,  the  colonial,  14, 16;  republican  form  of,  guaranteed  to  the  States, 
69,  94,  232,  233. 

Grand  Jury,  indictments  by,  71,  98,  251;  definition  of,  251. 

Great  Britain  claimed  the  right  to  govern  the  colonies,  11;  sovereign  of,  has 
absolute  veto,  209. 

Guaranty  of  a  republican  form  of  government  to  the  States,  69,  94,  232,  233. 


H. 

Habeas  corpus,  not  to  be  suspended,  62,  90,  211,  213;  example  of,  given,  213-215. 

Hamlin,  Hannibal,  Vice-President  of  the  United  States,  298. 

Harrison,  William  Henry,  President  of  the  United  States,  238 ;  died  while  in 
office,  139. 

Heads  of  Departments,  the  President  may  require  the  opinion  of,  65, 102;  table 
of,  299-312. 

Higb  Seas,  definition  of,  174;  power  of  Congress  to  punish  crimes  committed  on, 
61,  85,  173,  174. 

Homestead  lavr,  general  provisions  respecting,  162. 

House  of  Commons,  in  England,  127 ;  bills  for  raising  revenue  must  originate 
in,  128. 

House  of  Lords,  127;  composed  of  the  aristocracy  of  Great  Britain,  155. 

House  of  Representatives.    See  Representatives. 

Houses  of  Congress,  provisions  common  to  both,  55,  58,  82-84,  148-156;  quo- 
rum, 58, 83. 148, 149 ;  journal,  58,  83, 149 ;  yeas  and  nays,  58,  83, 150, 151 ;  business 
rules,  58,  83, 151 ;  penalties,  58,  83,  151, 152;  prohibitions,  58,  83,  152, 153;  official 
oath,  70,  84, 153, 154;  salaries,  59,  84,  154-156. 


I. 

Impeacbment,  House  of  Representatives,  sole  power  of,  56,  80, 126, 127 ;  Senate, 

sole  power  to  try,  57,  82, 145-147;  proceedings  in  cases  of,  126,  127, 145-147. 
Imports,  duties  on,  158. 
Importation  of  slaves.    See  slave-trade. 
Imposts,  power  of  Congress  to  lay  and  collect,  60,  84, 157,  158. 
Independence,  declaration  of,  40. 
Indians,  treatment  of,  12;  their  title  to  the  soil,  12. 
Indian  Tribes,  power  of  Cdngress  to  regralate  commerce  with,  60,  84, 168. 


336  INDEX. 


Indirert  taxes,  meaning  of,  157, 158. 

Inhabitancy,  required  of  representatives,  66,  79,  119,  120;  of  senators,  57,  80, 

130, 131. 
Insolvent  laws  by  the  States,  constitutional,  172. 

Insurrections,  militia  may  be  called  forth  to  suppress,  61,  86, 186, 187. 
Inter-State  commerce,  62, 90,  214. 

Invasion,  protection  against,  61,  86,  94,  186, 187,  232,  233. 
Invention,  patents  for,  61,  85, 180, 181. 


J. 

Jackson,  Andrew,  candidate  for  the  Presidency  of  the  United  States,  and  de- 
feated, 129;  elected  twice  afterward,  297. 

Jefferson,  Thomas,  Vice-President,  297,  elected  President  by  the  House  of  Rep- 
resentatives, 128 ;  serves  two  terms,  297. 

Johnson,  Andrevr,  Vice-President  of  the  United  States,  298;  succeeds  to  the 
Presidency  on  the  death  of  President  Lincoln,  139. 

Johnson,  Richard  M.,  Vice-President  of  the  United  States,  298, 

Journal  of  Congress  to  be  kept,  58,  83, 149. 

Judges,  appointment  and  tenure  of  office  of,  66,  67, 104,  287,  288 ;  salary  of,  67, 
105,  289, 

Judgment,  in  cases  of  impeachment  57,  82, 145-147;  not  pardonable  by  the  Presi- 
dent, 65,  102,  274. 

Judicial  Department,  where  vested,  66,  67,  104,  284,  285;  judges  of,  how  ap- 
pointed, 66, 104,  287,  288,  289 ;  oath  of  judges,  70, 104,  288 ;  tenure  of  office  in,  67, 
104,  288 ;  how  judges  of,  removable,  66,  104,  289 ;  jurisdiction  of,  67, 105,  289-296. 

Judicial  power  of  the  Senate,  57,  58,  82,  145. 

Jurisdiction,  original  and  appellate,  67, 105,  289-296. 

Jury,  trial  by,  71,  98,  252,  253. 

K. 

King,  William  R.,  Vice-President  of  the  United  States,  298. 


liands,  public,  disposal  of,  160-163 ;  jurisdiction  of  the  Federal  Courts  respecting 
titles  to,  67, 105,  294. 

Land-titles,  origin  of,  in  this  country,  13. 

JjfiiWf  definition  of,  290. 

Law  and  fact,  jurisdiction  of  the  Federal  Courts  as  to,  67, 105,  293,  294. 

La'w  of  nations,  offenses  against,  61,  85,  174. 

Laws  for  new  countries,  14;  mode  of  passing,  in  Congress,  59,  60,  88,  89,  207-210; 
power  of  Congress  to  make  all  necessary  and  proper,  62,  88,  205,  206;  ex  post 
facto  forbidden,  62,  63,  90,  96,  216,  217,  245;  impairing  the  obligation  of  contracts 
forbidden,  63,  96,  241,  243,  244. 

Law-making,  process  of,  59,  60,  88,  89,  207-211. 

Legal  tender  in  payment  of  debts,  63,  96,  241,  243,  244. 

Letters  of  marque  and  reprisal.  Congress  may  grant,  61,  85, 181, 183;  States  forbid- 
den to  grant,  63,  96,  244,  245, 


INDJSX.  337 


liiberty,  securing  the  blessings  of,  55,  78, 113, 114. 

liincoln,  Abraham,  died  while  President,  139 ;  twice  elected  President,  298,  299. 

liOuisiana)  acquisition  of,  196 ;  admitted  into  the  Union,  196. 


Madison,  James,  twice  elected  President,  297. 

Marque  and  reprisal.  Congress  may  grant  letters  of,  61,  85,  181,  183;  definition 
of,  183. 

Massaclinsetts,  settlement  of,  13;  called  a  meeting  of  first  Continental  Congress, 
18;  ratifies  the  Constitution,  31;  concession  of  territory  by,  196, 

Maryland,  settlement  of,  13 ;  original  government  of,  16 ;  appoints  commissioners 
to  meet  with  Virginia  commissioners,  24;  ratifies  the  Constitution,  31. 

Measures  and  weights,  power  of  Congress  to  fix  the  standard  of,  60,  85,  171. 

Meetings  of  Congress,  58,  88,  206,  207. 

Membership  of  either  house  of  Congress,  how  determined,  58,  82, 148. 

Militia,  power  of  Congress  over,  61,  85,  186, 187;  discipline  and  government  of  the, 
61,  85,  186,  187 ;  importance  of  the,  187. 

Ministers,  public,  appointment  of,  65,  66,  102,  275,  276;  foreign,  reception  of,  66, 
103,  279,  280 ;  jurisdiction  of  the  judiciary  over,  67,  105,  291. 

Money,  power  of  Congress  to  borrow,  60,  84,  157,  159 ;  regulating  the  value  of,  60, 
84,  170;  and  of  foreign  coin,  60,  84,  170,  171;  punishment  for  counterfeiting,  60, 
85, 173;  appropriation  of,  for  armies,  limited,  61,  90,  214,  215;  States  forbidden  to 
coin,  63,  96,  241,  242;  public,  not  to  be  drawn  from  the  treasury  unless  appro- 
priated by  law,  62,  90,  214,  215;  power  of  Congress  to  coin,  60,  84, 169. 

Monroe,  James,  twice  elected  President  of  the  United  States,  297- 

IVatnralization,  power  of  Congress  over  the  subject  of,  60,  86,  189. 

Navy,  Congress  may  provide  and  maintain  a,  61,  85,  185,  definition  of,  185. 

Negative  of  the  President  on  laws,  59,  60,  89,  209,  210. 

Nevr  Hampshire,  settled,  13;  original  government  of,  15;  ratifies  the  Constitution, 

31 ;  concession  of  territory  by,  196. 
New  Jersey,  settled,  13;  adopts  the  Constitution,  81. 
New  States,  power  of  Congress  to  admit  into  the  Union,  68,  86, 192, 196. 
New^  Yorlc,  settled,  11, 13;  original  government  of,  15;  ratifies  the  Constitution,  31; 

concession  of  territory  by,  196. 
Nobility,  titles  of,  forbidden,  62,  63,  90,  96,  215,  245. 
North  Carolina,  settled,  13;  original  government  of,  15 ;  ratifies  the  Constitution, 

31 ;  concession  of  territory  by,  196. 

o. 

Oath  of  oflBce,  by  members  of  Congress,  70,  84,  154;  by  judges  of  the  Supreme 
Court,  70,  283;  by  the  President  of  the  United  States,  65, 101,  271. 

Obligation  of  contracts.  States  forbidden  to  pass  laws  impairing,  63, 96, 243, 244. 

Office,  tenure  of  by  representatives,  56,  79,  121, 122;  tenure  of  by  senators,  57,  80, 
132, 133;  disqualifications  of  members  of  Congress  respecting,  59,  7d,  80, 120, 121, 
130,  132;  tenure  of  by  the  President,  63,  99,  261,  262;  tenure  of  by  the  Vice- 
President,  63, 104,  283;  appointments  to,  65,  66,  102,  275,  276;  removal  from,  66, 
276,  2T7 ;  tenure  of  by  judges,  67, 105,  287,  288. 
22 


338  INDEX. 


Officers,  provisions  relating  to,  59,  63,  64,  92, 107,  227,  228 ;  not  allowed  to  accept 
foreign  patronage,  62,  63,  92,  227 ;  the  President,  65,  92,  260-281 ;  impeachment  of, 
57,  58,  66,  92,  93,  228;  Federal,  to  be  commission3d  by  the  President,  66,  103,  281. 

Orlgtual  and  appellate  jurisdiction  of  the  Supreme  Court,  67, 105,  291-295. 


Pardons,  the  President  has  the  power  of  granting,  except  in  cases  of  Impeachment, 
65,  102,  274;  definition  of,  274. 

Patent  rights,  61,  85,  178,  180 ;  method  of  procuring,  180. 

Penalties,  either  house  of  Congress  may  inflict,  68,  83, 151, 152. 

Pennsylvania,  settled,  13;  original  government  of,  15;  ratifies  the  Constitution, 
31. 

People,  Constitution  framed  by  the,  55,  78, 109 ;  right  of  to  peaceably  assemble,  and 
petition  for  a  redress  of  grievances,  70,  91,  222,  224. 

Personal  rights  as  to  domicile,  71,  97,  249,  250 ;  as  to  security  of  person,  house, 
papers,  and  effects,  71,  97,  249,  250;  judicial,  71,  98,  250-252;  as  to  criminal  trials, 
71,  72,  98,  252-254;  as  to  civil  actions,  right  of  trial  by  jury,  72,  99,  256,  257;  as  to 
charges  of  treason,  67,  68,  99,  257-259;  as  to  arrest,  freedom  of  speech  and  debate, 
59,  99,  259,  260. 

Piracies,  power  of  Congress  to  define  and  punish,  61,  85, 173-175;  definition  of,  by 
common  law,  173,  174. 

Pliiladelpliia,  Constitutional  Convention  met  at,  27. 

Pierce,  Franlclin,  President  of  the  United  States,  298. 

Pollc,  James  K.,  President  of  the  United  States,  298. 

Population,  progress  of  in  the  United  States,  126. 

Postmasters,  appointment  of,  176. 

Post-Offices  and  post-roads,  61,  85,  175-178. 

Preamble  to  the  Constitution,  55,  78,  109 ;  exposition  of  the,  109-114. 

Presents  to  persons  in  oflice  forbidden,  62,  63,  92,  227. 

President  of  the  Senate,  Vice-President  of  the  United  States,  57,  81, 137,  139-141. 

President  of  the  Senate  pro  tempore,  not  Vice-President  of  the  United  State*, 
139-141. 

President  of  the  United  States,  impeachment  and  trial  of,  66,  101,  271 ;  cannot 
pardon  in  cases  of  impeachment,  65,  102,  274;  power  of  to  approve  and  negative 
bills.  59,  60,  88, 89,  207,  209-211 ;  commander-in-chief  of  the  army  and  navy,  65, 102, 
272,  273;  his  power  to  call  out  the  militia,  187,  273;  tenure  of  office  of  the,  63,  99, 
261,  262;  mode  of  electing  the,  72,  73,  100,  101,  263-267;  qualifications  for,  64, 
100,  262,  263;  provision  for  vacancy  of  the  oflice  of  the,  65,  87,201;  compensation 
of  the,  65, 101,  272;  oath  taken  by  the,  65,  101,  271;  powers  of  the,  65,  66,  102, 
103,  272;  may  require  the  opinion  of  the  heads  of  the  Departments,  65,  102,  273; 
power  of,  to  grant  reprieves  and  pardons,  65, 102,  274;  to  make  treaties,  65, 102, 
274,  275;  power  of,  to  make  appointments  to  oflice,  65,  66,  102,  275-277;  to  give 
information  to  Congress,  66, 102,  278,  279;  to  convene  and  adjourn  Congress,  66, 
102, 103,  279 ;  to  receive  ambassadors  and  other  public  ministers,  66,  103, 279, 280 ; 
shall  sea  that  the  laws  are  faithfully  executed,  66,  103,  280,  281;  shall  coounission 
all  officer^  of  the  United  States,  66,  103,  281 ;  may  be  re-elected,  263. 

Presidente  of  the  United  States,  table  of,  296;  of  the  Senate  pro  tempore,  list  of, 
314. 

Press,  Uberty  of  the,  70,  91,  223. 


INDEX.  339 


Private  property,  on  taking  for  public  use,  71,  98,  252. 

Privilege  from  arrest,  59,  99,  259,  260. 

Privileges  of  citizens,  68,  93,  106,  230. 

Proliibations,  habeas  corpus,  62,  90,  211-213;  -with  regard  to  taxes,  62,  90,  213; 
respecting  export  duties,  62, 90,  213, 214 ;  inter-State  commerce,  62, 90,  214 :  public 
money,  61,  62,  9D,  214,215;  titles  of  nobility,  62,  90,  215,  216;  penalties,  62,  08,  90, 
91,216,  217;  foreign  slave-trade,  62,  69,  91,  217-221,  246-248;  repudiation,  63,  70, 
91, 107, 108,  21,  222;  civil  freedom,  70,  91,  222,  223;  religious  freedom,  70, 91, 222, 
224,  225. 

Proprietary  governments,  14, 15. 

Provincial  governments,  14, 15. 

Public  lands,  160-163;  concessions  of,  by  several  States,  196. 


Q,ualificatlons  for  electors  of  representatives,  66,  79,  123,  124;  for  representa- 
tives, 56,  79, 119, 120;  for  senators,  57,  80, 130-132;  for  President  and  Vice-Presi- 
dent, 64,  100,  103,  262,  281. 

Q,ii.artering  soldiers  in  private  houses  forbidden,  71,  97,  249. 

Quorum.)  in  either  house  of  Congress,  58, 83, 149;  in  the  House  of  Representatives, 
to  elect  a  President,  73, 101, 267,  268;  to  elect  a  Vice-President  by  the  Senate,  73, 
103,  282. 

R. 

Ratification  of  the  Constitution  by  all  the  States,  31. 

Receipts  of  public  money,  account  of,  to  be  published,  62,  90,  214,  215. 

Religion,  freedom  of,  70,  91,  222,  224,  225. 

Religious  establishments  forbidden,  70,  91,  222,  224. 

Religious  tests  for  office,  prohibited,  70,  91,  224,  225. 

Representation,  ratio  of,  in  the  House  of  Representatives,  56,  78, 114-116,  229. 

Representatives,  House  of,  in  Congress,  55;  proportion,  56,  78, 114-116;  appor- 
tionment of,  56,  79, 108, 107,  116-119;  eligibility  to  membership  of,  56,  79, 119-121; 
term  of,  56,  79, 121,  122;  by  whom  elected,  56,  79, 123,  124;  qualifications  of  elect- 
ors of,  56,  79, 123, 124;  vacancies  in,  how  filled,  66,  80, 124;  powers  of  House  of, 
65,  56,  59,  80,  126-129;  apportionment  of,  in  1860,  229. 

Reprisal,  letters  of  marque  and,  61,  85, 183. 

Reprieves  and  pardons  by  the  President,  65, 102;  definition  of,  274. 

Republican  form  of  government  guaranteed  to  the  States,  69,  94,  232,  233. 

Resources,  national,  84, 157. 

Rhode  Island  settled,  13;  its  original  form  of  government,  16 ;  ratifies  the  Con- 
stitution, 31. 

Rules,  each  house  of  Congress  may  determine  its  own,  58,  83, 151;  Congress  may 
make,  concerning  captures,  61,  85, 181, 184 ;  Congress  may  make,  for  the  govern- 
ment of  the  land  and  naval  forces,  61,  85, 181, 186. 


Salary,  of  members  of  Congress,  59, 84, 154-156;  of  the  Federal  judges,  67, 105,  289; 
of  members  of  the  cabinet,  312 ;  of  the  President  of  the  United  States,  65, 101, 272. 


340  INDEX. 


Seat  of  GoT-ernment,  power  of  Congress  over,  61,  86, 192, 193;  places  where  it 
has  heen  located,  194. 

Second  trial  forbidden,  251. 

Senate,  United-States,  how  composed,  57,80,  129,  130;  eligibility  to  membership 
of,  57,  59,  80,  130-132;  vacancies  in  the,  how  filled,  57,  81,  136, 137;  presiding  offi- 
cer of,  57,  81,  137-141;  powers  of  the,  55,  57,  58,  59,65,  63,73,81,82, 141-147;  Tres- 
ident  pro  tempore  of,  not  Vice-President  of  the  United  States,  139-141. 

Seiiator;^,  how  chosen,  57,  81,  133;  mode  of  choosing,  134;  their  term  of  service,  57, 
80,  132, 133;  how  classed,  57,  81,  135,  136;  qualifications  of,  57,  59,  80,  130-132. 

Settlement  of  the  North- American  Colonies,  13. 

Shays,  Daniel,  leader  of  insurrection  in  Massachusetts,  26. 

Ships  of  war,  not  to  be  kept  by  States  in  time  of  peace,  63,  96,  244,  245. 

Slavery,  its  abolition,  74,  97,  203,  204;  prohibited  in  North-west  Territory,  248. 

Slave-trade,  foreign,  not  to  be  prohibited  by  Congress  prior  to  1808,  62,  74,  91, 
204;  briefhistory  of,  217-221. 

South  Carolina  settled,  13;  original  government  of,  15;  ratifies  the  Constitution, 
31;  concession  of  territory  by,  196. 

Speakers  of  the  House  of  Representatives,  312. 

Standard  of  weights  and  measures,  power  of  Congress  to  fix  the,  60,  85,  170. 

States,  ratification  of  the  Constitution  by  the,  31 ;  voting  by,  under  the  Confedera- 
tion, 20,  47;  apportionment  of  direct  taxes  among  the,  56,  84,  90,  157;  apportion- 
ment of  representatives  among  the,  56,  79, 106,  11(5-119;  not  to  engage  in  war,  63, 
96, 244 ;  rights  of,  as  to  citizenship,  68, 93, 106, 230 ;  the  faith  and  credit  to  be  given 
to  the  public  acts,  records,  and  judicial  proceedings  of,  68,  93,  230;  admission  of 
new,  into  the  Union,  68,  69,  93,  195-197 ;  the  return  of  fugitive  criminals  by  the,  68, 
94,  233,  234;  the  return  of  fugitive  slaves  by,  68,  94,  234;  prohibitions  as  to  trea- 
ties, alliances,  and  confederations,  63, 96,  240, 241 ;  prohibitions  as  to  war-powers, 
63,  96,  244;  as  to  commercial  powers,  63,  96,  241-244;  as  to  penalties,  63,  96,  216, 
217;  as  to  granting  titles  of  nobility,  63,  90,  96,  215,  216;  voting  by,  in  the  choice 
of  President,  73, 101,  257,  288;  privileges  and  immunities  of  citizens  of,  68,  93,  106, 
230;  guaranty  of  a  republican  form  of  government  to  the,  69,  94,  232,  233;  power 
of  Congress  over  the  elections  of,  58,  86,  197, 198. 

State  Prohibitions,  as  to  State  relations,  63,  96,  240,  241 ;  relating  to  commerce, 
63,96, 241-243;  as  to  war-powers,  63, 96, 244,  245;  as  to  penalties,  63,  96,  245;  as  to 
granting  titles  of  nobility ,  63, 96,  245;  as  to  exacting  duties  of  tonnage,  63,  97,  245, 
246;  as  to  slavery,  74,  97,  246-248. 

State  Subordination,  origin  of,  69,  70,  95,  96,  236-238. 

Supreme  Court,  judicial  power  vested  in,  66,  67, 104,  284. 


Taxation,  Great  Britain  claimed  the  right  of,  over  the  Colonies,  17.  " 

Taxes,  definition  of,  157;  Congress  had  no  power  to  lay  and  collect,  under  the  Con- 
federation, 22;  apportionment  of  direct,  56,90, 157;  power  of  Congress  to  lay  and 
follect,  60,  84, 157 ;  on  imported  slaves,  62,  83,  203  298. 

Taylor,  Zachary,  President  of  the  United  States,  298;  died  while  President,  139. 

Tender,  in  payment  of  debts,  63,  96,  241,  243,  244. 

Tenure  of  office  of  representatives,  56,  79, 121,  122;  of  senators,  57,  80,  132,  133;  of 
the  Federal  judges,  67, 104,  289;  of  the  President  of  the  United  States,  63,  99,  261. 

Term,  representative,  56,  79,  121,  122;  senatorial,  57,  80, 132, 133;  Presidential,  63, 
99,  261. 


INDEX.  341 


Territory,  power  of  Congress  to  govern,  69,  86,  192;  acquisition  of,  195,  196; 
power  of  Congress  to  dispose  of,  69,  83, 160-163;  each  organized  to  have  one  rep- 
resentative, 116. 

Tests,  religious,  forbidden  as  qualifications  for  office,  70,  91,  222,  22i. 

Title  to  the  soil  of  America  claimed  by  the  Indians,  13. 

Titles  to  land,  origin  of,  in  thft  country,  13. 

Titles  of  nobiUty  forbidden,  62,  63,  90,  96,  215,  216,  215. 

Tompkins,  Oauiel  !>.,  twice  Vice-President  of  the  United  States,  297. 

Tranquillity,  domestic,  provisions  to  insure,  55,  78,  111,  112. 

Treason,  Congress  to  declare  the  punishment  of,  G8,  85,  175;  definition  of,  67,  99, 
257,  258 ;  conviction  of,  67,  9d,  257,  258, 

Treasury,  drawing  money  from,  62,  90,  214,  215. 

Treaties,  finder  the  Confederation,  49;  States  forbidden  to  enter  into,  63,  96,  240, 
241;  power  of  President  and  Senate  respecting,  65,  82, 141-144,  274,  275;  definition 
of,  143. 

Trial,  of  impeachment,  57,  58,  82,  145-147 ;  by  jury,  71,  98,  256, 257;  places  for  hold- 
ing, 71,  86,  98,  188,  189;  prohibition  of  second,  71,  98,  250,  251. 

Troops,  not  to  be  kept  in  time  of  peace,  by  the  States,  63, 96, 244;  quartering  in  time 
of  peace,  in  houses,  forbidden,  71,  97,  244,  245. 

Tyler,  Jolin,  Vice-President  of  the  United  States,  298 ;  succeeds  to  the  Presidency 
of  the  United  States  on  the  death  of  President  Harrison,  139 ;  becomes  Presi- 
dent, 298. 


u. 

Unity  of  the  Colonies,  18;  of  the  Executive,  261. 
Uniformity  of  duties,  imposts,  and  excises,  60,  84, 157, 158. 

Union  of  the  States  to  be  perpetual  under  the  Confederation,  18, 45,  54;  admission 
of  New  States  into  the,  68,  86, 192, 19»-197. 


Vacancy  in  House  of  Representatives,  how  supplied,  56,  80,124;  in  the  Senate, 
57,  81,  138, 137 ;  of  the  Presidency  and  Vice-Presidency  of  the  United  States,  65, 
87,  201 ;  appointments  by  the  President,  to  fill,  during  the  recess  of  the  Senate, 
66,  102,  277,  278. 

Van  Bnren,  Martin,  Vice-President  of  the  United  States,  297;  President  of  the 
United  States,  298. 

Veto,  definition  of,  209 ;  the  President's  limited,  209 ;  the  sovereign's  of  Great  Bri- 
tain absolute,  203 ;  restraint  upon  it  by  Congress,  69,  60,  89,  207,209,210;  Dr. 
Franklin's  views  respecting,  210. 

Vice-President,  qualifications  of,  73,  103,281;  how  elected,  73, 103,  232 ;  official 
oath  of,  70,  103;  official  term  of,  63,  104,  283;  powers  and  duties  of,  57,  65,  73, 
104,  233, 231;  vacation  of  the  senatorial  chair  by  the,  133. 

Vice-Preshlents,  list  of,  290. 

Virginia,  settled,  13;  original  form  of  government  of,  15;  takes  the  load  in  farm- 
ing the  Constitution,  23,25;  ratifies  the  Constitution,  31;  concession  of  public 
lands  by,  196. 

VotOf  each  senator  has  one,  57,  81, 137. 


S42  INDEX. 


W. 

War,  power  of  Congress  to  declare,  61,  85, 181. 

Warrants  for  search  and  seizure,  71,  97,  249,  250. 

Washington,  Creorge,  appointed  delegate  to  the  Constitutional  Convention,  25; 
is  unanimously  chosen  president  of  that  convention,  28 ;  is  chosen  unanimously 
first  President  of  the  United  States,  30;  serves  two  terms,  296. 

Weights  and  measures,  power  of  Congress  to  fix  the  standard  of,  60,  85, 171. 

Welfare,  general,  provisions  for  promoting  the,  55,  78, 112, 113. 

West  Virginia,  when  erected  into  a  State,  231;  when  admitted  into  the  Union, 
197,  231. 

Whitney,  Eli,  invents  the  cotton-gin,  205.  • 

Witnesses,  persons  accused  not  bound  to  be,  against  themselves,  71,  98,  254; 
accused  to  have  compulsory  process  for  obtaining,  71,  98,  254;  party  accused  to 
be  confronted  by,  71,  98,  254;  two  necessary  to  conviction  of  treason,  67,  68,  99, 
254,  257,  258. 


Teas  and  Nays,  shall  be  taken  on  demand  of  one-fifth  of  the  members  of  either 
house  of  Congress,  58,  83, 150;  mode  and  object  of  taking  the,  laO. 


THE    END. 


o 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

This  book  is  due  on  the  last  date  stamped  below,  or 

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Renewed  bQQ|^s^jB^«ail;ufiff  tft  immfidiatfi/ecall. 


ICIJ 

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MAR  3  1  196S  8  8 

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hEHl  0^4  ?LL 

JUN  0  7  1995 

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